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


1¡
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
r¡
¡
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 collaterals after
brothers' and sisters' children.


Ifno wife, the whoIe to go to the children if there be
any, otherwise to the next of kin,


Not to extend to estates of femes covert, which husband
may administer to and keep.


If intestate leave no father, wife, 01' children, his mother,
brothers, and sisters to share his esta te equally.


Estate of intestate not to be distributed till one yea1'
after his death, and parties participating therein to give
bond for refunding their saIeabIe part, to enable adminis-


(3) See ante, p. S lo 16, on the general topic how far the colonies are sub-
iect to tbe laws of the mother country.




39~ TIIE BERMUDAS.
trator to pay debts of deceased discovered after such dis-
tribution.


Governor may grant administration cum testamento an-
nexo as heretofore,
6 ANNE.-An Act J01' Quieting Estates and preventing


. Law Sl1its.-Confirmed f26th June, 1708.
Ir any persons, 01' their heirs, have quietly held any


lands, &c., in these islands for the term of twenty years,
accounting from the time of the first entry thereon, without
any claim 01' acknowledgment for the same demanded 01'
paid, that then the said lands, &c. so held sbaU be ac-


, counted a good and sufficient right and title to them and
their heirs for ever, and that all persons not claiming and
proseeuting the same effectually in some proper court of
record in these islands, within the time limited, shaU be
utterly excluded from all claim, any Iaw, statute 01' ordi-
nance to the contrary nbtwithstancling; nevertheless, the
true intent and meaning hereof is, that nothing herein con-
tained shall for the futuro extend 01' be eonstrued to
hinder any person 01' persons who shall have any claim 01'
title, in reversion 01' remaider, to any lands, &c. within
these islands; but that all such persons may claim 01'
bring bis 01' their suit 01' action, and proseeute the same
at any time within twenty years from the cause of aetion
or title accrued, and for want of such claim or prosecution
to effeet in these islands, to be utterly disabled and barred
for ever.


N othing eontained in this aet shall extend to any feme
covert, person of unsound mind, infant, person imprisoned,
or otherwise hindered heyond the seas; but that any such
person 01' persons, notwithstanding the said twenty years
are expired, may claim 01' bring his 01' their suit 01' action,
any thing herein eontained to the contrary notwithstand-
ing: Provided that every such person shall put in bis suit
01' claim and prosecutc the same effeetually within some
Court of Record within tbese islands, within the term of
seven years ncxt ensuing after their diseoverture, coming
to sound mind, 01' of fuIl age, being at liberty, and return-
ing into these islands, otherwise to be for ever excluded.
19 GEO. 3.-An Act directing what COTlVeyances shall be


sufficient to pass the Real Estates of Women under Co-
verture.-~9Zd May, 1779.
AIl wills, deeds, 01' other conveyances beretofore made


and executed by any woman un del' eoverture, for valuable




THE BERMUDAS. 393
consideration, for the passing of any lands 01' tenements
in these islands, shall be dcemed and are hereby declared
to be as good and suffieient for the eonveying of such
lands and tenements, to the grantees 01' devisees in such
deeds 01' wills named, as if such woman had not been un-
del' coverture; unless it can be made clearly to appear
that such dceds 01' wills wcre executcd contrary to the will
and desire of the feme coverts who executed the same.


Any deeds 01' other conveyanees executed by any wo-
men under coverture, and their husbands, for any lands
01' tenemcnts in these isIands, shall be as sufficient and
effeetual for the conveying and assuring such lands 01' te-
nements to the grantees in sueh deeds 01' conveyances
named, as if sueh women had not been under coverture :
Provided that the woman exeeuting sueh deeds, &c.,
being for that purpose privily examined by the Chief
Justice of the Courts of Common PIeas, King's Beneh,
and Assize, et) for the time being, do confess that she
executed such deeds, &e. voluntarily, and without the fear,
threat, 01' compulsion of her husband, and a certificate of
sueh eonfession, under the hand and seal of such chief
justice, be indorsed on the back of such deeds, &c., and
that such deeds, &c. be recorded in tbe secretary's office
.of these islands witbin six calendar months next after tbe
execution thereof.


43 GEO. S.-An Act in Addition to an Act intituled " An
Act ilírectíng wlwt Conveyances shall be sujficient lo
pass the Real Estates oI Women under Coverture.-
-Q8th July, 1803.
The chief 01' any assistant justice may issue a commis-


sion to any person to take the private acknowledgment of
any feme covert who may have executed with her husband
any deed for passing her real estate, such acknowledg-
ment to be indorsed on, 01' annexed to such deed, under
the band and seal of the commissioner.


Any deed made by a feme covert of her realty, and
acknowledgecl by ber before tbe chief, 01' if none, 01' ab-
sent, any assistant justice 01' a commissioner, to bar such
feme covert ofher dower in such realty.


(4) Or a counnissiouer, see 43 Geo. 3.




394 THE BERMUDAS.


~~ GEO. :3.-An Act as wellfor the Limitation of certain
Personal Actions and avoiding Suits, asfor the Amend-
ment of the Law and the better Advancement of Jus-
tide.-30th March, 178Q.
All warranties made by any tenant for life of any lands,


&c., the same descending or coming to any person in re-
version 01' remainder, shall be void and of noneeffect j
and likewise all collateral warranties made of any lands,
&c. by any ancestor wbo bas no estate of inheritance in
possession in the same, shall bevoid against his heir.
Q6 GEO. 3.-An Act to preoent Frauds and Abuses in


Mortgages, or other conditional Conveyances qf Pro-
perty.-lOth May, 1786.
All persons holding mortgages, &c. which shall be made


and executed by any person of these islands, shall give
into the secretary's office of these islands the names of the
mortgagor and mortgagee, the date of such mortgage, &c.,
the particular property mortgaged, &c., and the sum se-
cured thereby; and in case any person holding such
mortgage, &c. shall omit or neglect to comply with the
directions before mentioned, that then any person who
shall accept any subsequent mortgage, &c. on the same
property, and shall first give to the said secretary's office
the substance of such subsequent mortgage, &c., in such
manner as hereinbefore directed, shall be deemed the first
mortgagee of such property, and recover the sum or sums
of money secured by such subsequent mortgage in any
Court of Record in these islands, in thc same manner as
if such property had been first conditionally conveyed to
him; and that all other mortgages, &c. shall take place
and their validity be ascertained and determined in such
regular succession as they shall be registercd in the said
secretary's office, in the manner before directed.


The secretary for the time being, or his deputy, shall,
when required, register in a book for that purpose to be
kept, the substance and contents of any mortgage, &c. in
the manner hercinbeforc directed, together with the time
when such report shall be to him made.
~6 GEO. 3.-An Act for the better Recovery ofDebts due


on Promissorn Notes, and¡ the Assignment qf Bonds,
Obligations, and Notes.-lOth May, 1786.
It shall and may be lawful for any person 01' persons to


assign any bond, &c. by which the payment of any mo-




THE BERMUDAS. 395
nies shall be secured to such person 01' persons to any
other person 01' persons whatsoever, and that the assignee
01' assignees, indorsee 01' indorsees, of such bond, &c., by
virtue of such assignment al' indorsement, shall have law-
ful power to commence and prosecute any suit at law, in
his 01' their own name 01' names, for the recovery of any
debt due by such bond, Sc., as the first obligee might 01'
could lawfully do: Provided that in any bond, &c. so
made, assigned, indorsed, 01' transferred, the plaintiff
shall allow a discount of all demands which the defendant
can prove, either against the plaintiff himself 01' against
the first obligee, befare notice of such assignment was
given to the defendant.


Act to continue in force till June 1st, 1796. (Con-
tinued by subsequent acts to June 21st, 18~6.)
27 GEO. 3.-An Act declaring Houses, Lands, Tene-


ments, aná other Hereditaments aud Real Estates, in
tite Island of Bermuda, to be subject to the Payment of
Debts.-14th July, 1787.
Real estates in the Bermuda Islands are declared sub-


ject to the owner's debts of every kind, and may be seized,
extended, and sold as personal estate for the like pur-
poses.


When the chattels of deceased are insufficient, the
Court of Chancery may empower the executor 01' adminis-
tratar to sell all 01' sufticicnt part of deceased's real estate
(widow's dower excepted) to pay his debts, and such exe-
cutor 01' adrninistrator may then convey such real estate to
the purchaser. Such assets to be applied in same order
as personal estate.


Voluntary alienation of real estates are declared void
against creditors,


~9 GEO. 3.-An Act to enable the Holders of Small Par-
cels of Land witMn the Bermuda Islands, in Fee Tail,
to alter the same to Fee Simple, and directing ihe
Mode ofdoing the same.--15th July, 1789.
Tenants in tail of not cxceeding five acres may alter


such estate to a tenancy in fee by bargain and sale, feoff-
ment, 01' lease and release recorded in the secretary's
office: Provided that this act is not to be construed to
confirm 01' better any original title. Such conveyances,
when executed by married women, to be accompanied




396 THE BERMUDAS.
with the requisites prescribed by the 19 Geo. 3, ante, p.
392.
60 GEO. 3.-dn det for the Relief 01 lnsolvent r».


sonso (5)-7th January, 1820.
AH the estates of persons discharged to vest on their


discharge in the provost marshal, who, 01' his deputy,
must assign the same to such creditors as may apply in
nine months, 01' to such of them as the majority may electo


Such assignees to have the same power of selling 01'
conveying such estate as the debtor himself hado


Such prisoner's estate and the proceeds thereof to be
held in trust for the creditors,


Not to .prevent creditors bringing actions for their
debts.


The English statute of frauds has been held not to
apply to Bermuda, and therefore that a real estate there
would pass by a will made in the colony though not exe-
cuted in the manner required to pass real estates accord-
ing to that statute.


(5) Thisactwasforthereliefofper- montbs previous to December 2d
sons who were upon, and for eighteen 1819, in prlson,




( 397 )


THE CANADAS.


-


THIS country líes between the 45th and 52d degrees of
north latitude, and the 63d and 81st of west longitude
from Greenwieh. The territory of Hudson's Bay 01'
East Maine is its northern boundary. The Gulph of
St, Lawrenee, the River St, John, and part of the Labra-
dor eoast bound it on the east. Its southern limit is
formed partly by New Brunswiek and partly by a portion
of the territory of the United States, viz. the district of
Maine, the province of New Hampshire, the state of Ver-
mont, and that of New York. The western boundary
was settled by the Act of Parliament of 1791, dividing
the provinee of Quebee. The line running between the
provinees of Upper and Lower Canada 1S by that aet di-
reeted to eommence "at a stone boundary on the north
bank of the lake Sto Franeis, at the Cove of Pointe au
Baudette, in the limit between the township of Laneaster
and the seignory of New Longueil, then along the north-
ern boundary of the seignory of Vaudreuil running north
twenty-five degrees east until it strikes the Ottawa river,
to aseend the said river into the lake Temiseaming, and
from the head of the said lake by a line drawn due north
until it strikes the boundary line of Hudson's Bay, in-
cluding all the territory to the westward and southward
of the said line to the utmost extent of the country known
by the name of Canada."-Bouchette's Topography, pp.
1, 3. Supp. Eneylopredia Britannica.


The boundary line between the province of Upper
Canada and the United States was finally settled by the
King of the N etherlands,


HISTORY AND CONSTITUTION.
In the year 1497 Sebastian Cabot, holding a commission


from Henry 7, of EngIand, discovered the countries si-
tuate on the south-west of the Sto Lawrence. The Eng-




398 THE CANADAS.
lish, however, did not make any use of the discovery, but
the French began to fish for cod on the banks of New-
foundland and along the coast of Canada early in the six-
teenth century.


The territory now known by the name of Canada was
until 1759 in the possession of France, and, together
with the remainder of her possessions in that part of
America, was distinguished by the appellation of La
N ouvelle France.


Before the year 1600 many expeditions had sailed from
France to colonize Canada, but all of them seemed to
have failed most miserably. About 1605 Quebec was
built, and from that time the settlements went on increas-
ing. In 16929 Canada was taken by the English, but was
then held in so little estimation as to be returned to the
French within three years afterwards,


In 1663 Canada, which had till that period been a pro-
prietary government, was raised to the dignity of a royal
government, and from tbat time its Governors were ap-
pointed by a regular commission from tbe King.


In 1759 it was conquered by General 'Volfe. By the
second article of the capitulation of Quebec, dated 18th
September, 1759, the inhabitants were to be maintained
in the possession of their houses, goods, effects, and pri-
vileges. The sixth article guaranteed the free exercise
of tbe Catholic religion. By the twenty-seventh article
of the capitulation of Montreal and the province of Ca-
nada, the free exercise of the Catholic religion was
guaranteed; and the forty-sixth article secured all the
privileges of trade to the Canadian merchants as to the
other subjects of His Britannic Majesty. By the treaty
of Paris, signed 17th February, 1763, the Canadas were
ceded to His Britannic Majesty, undel' certain provisions,
founded in sorne measure on the articles of capitulation
before referred to. On the 7th of October in the same
year the King issued a proc1amation, the objects of which
were these. Both by the capitulation and by the treaty
of Paris the inhabitants of Canada were treated as British
subjects ;-in conformity with that understanding the pro-
clamation was issued, and no distinction whatever was
made between the old and newly-acquired subjects. The
English criminal and civil law was established, with the
laws of the Admiralty, and the trial by j ury was to be em-
ployed in both criminal and civil cases. In 1774 a portion




THE CANADAS. 399
of the old laws, chiefly relating to real property, was re-
established by the authority of an Act of Parliament,
called the Quebec Act. 'I'he effect of the general man-
ner in which this act was worded, was to take away the
habeas corpus and the trial by jury, but these were re-
established, the first in 1784, and the second in 1785, by
two ordinanees issued under orders from England. In
the year 1791 an Act of Parliament, which divided Ca-
nada into the two provinces of Upper and Lower Canada,
conferred on the people of both provinces their present
representative governments. Mr, Pitt stated, on moving
for leave to introduce the bill, that its object was "to put
an end to the competition between the old French inhabi-
tants and the new settlers from Britain or British colonies,
which had occasioned the disputes and uncertainties re-
specting law, &c." The legislative body was to be com-
posed of the Governor, the Legislative Council, and the
House of Assembly. The administrative body consisted
of the Governor and an Executive Council, The Execu-
tive Council of Lower Canada is composed of twelve
members. (1) The Legislative Council is composed of
tbirty-three members, who are appointed by the Gover-
nor.-Report of Select Committee on Canada, July 22d,
1828.


The House of Assembly in eaeh provinee is eleeted
every four years. By a proclamation of Sir A. Clarke, in
1792, the provinee of Lower Canadá was divided into
twenty-one eounties, and the number of members to be
returned was fixed at fifty. The qualifieation required


(1) This staternent is in part taken
from Mr, Bouehette's book, tbe mostre-
eent work on Canada, in whieh the de-
tails of the form of government in that
provinee are referred too The Alma-
naek for Lower Canada, for the year
1828, disagrees from Mr. Bouehette
as to numbers, in this and one or
two other instances, The Alma-
naek gi"es a list of the mcrnbcrs,
who amount only to eleven, inc1uding
the Lord Chief J ustiee of the pro-
vinee and the Lord Bishop of Quehee,
both of whom appear to hold seats in
the Council in virtue of their re'pec-
tive ofliees. The list of names of the
members of the Legislative Conncil,


inlike manner, amount only to twenty-
scven, including the Lord Chief Jus-
tiee of the Provinee, who is Speaker
of the Couneil, and the Lord Bishop
of Quebee. The list of the members
of the House of Assembly of the
Lower Provinee eontains the names of
fifty persons, The same Almanaek
gives the names of seven members of
the Exeeutive Council for Upper Ca-
nada, of twenty members of the Le-
gislative Councll, and of forty-seven
rnernbers of the House of Assembly
there, The numbcr of representa-
tives fur Lower Canada has siuce been
altered by Aet of Assembly. (See
post. )




400 THE CAN ADAS.
for a member is to have real property yielding 60s. a
year in the county, or .E5 in the cities, or to paya rent of·
ot'lO.-Bouchette, 1 to j24.


By a bill amended by the LegisIative Council and
agreed to by the House of Assembly on the 11th of
March, 1829, the number of representatives for Lower
Canada was fixed at eighty-four, the principIe of which is
to give two members for every 4000 inhabitants and up-
wards, and one for every number less than 4000 and
aboye 1000. If the inhabitants are 1ess in number than
1000 they are to vote in the next county.


On the 7th of March, 1820, was passed an Act of the
Assemb1y of Upper Canada, reciting that from the rapid
increase of the population of the province the number of
representatives was too Iimited, and enacting that in fu-
ture " each and every county was formed and organized,
01' which shall 01' may hcreafter be formed, the population
of which shall amount to 1000 sou1s, shall be represented
in the Provincial Parliament by one member, and when it
amounts to 4000 by two members; and that every town
in which the Quarter Sessions for the district are he1d,
containing a population of 1000, shall likewise be repre-
sented by one member."-Report of the Select Commit-
tee on the Civil Government of Cariada, 2Zd July, 1828.
House of Commons' Papers, 569.


Allthe judges are appointed by the Governor. (2) Thc
sheriff is an officer of the court removable at the will of
the Governor, and receives a salary for the performance
of his duties.


The Governor of the respective provinces has power
also, from time to time, by an instrument under the great
seal of the provinee, to appoint and remove the speakers
of the Legislative Counci1s of such provinces respectiveIy.


AHquestions before the Legis1ative Council and Assem-
bly are determined by a majority of the persons present;
and if they be equally divided in opinion, then the speaker
oI the COllnciJ or oI tbe AssembJy! as it may be! has t1
casting vote.


When a bin which has been passed by the Legislative
Council and by the House of Assembly, in either of the


(2) Query, is not this a mistake ?
The appuintment lllay in form be under
his warrant, but thc higher judicial


ofliccrs at lcast are believed to receive
their appointments from horue. This is
the case at lcast in thc other colonies.




THE CANADAS. 401
provinces, is presented for His Majesty's assent to the
Governor, he must, according to his discretion, but sub-
jsct to the provision of 31 Geo. 3, c. 31, and such instruc-
tions as may from time to time be given him in that be-
half by His Majesty, declare that he assents to such bill
in His Majesty's name, 01' that he withholds His Ma-
jesty's assent from such bill, 01' that he reserves such bill
for the signification of His Majesty's pleasure thereon.


And no bill which is reserved for the signification of
His Majest~'s pleasure thereon has any force till the
Governor of the province makes known, either by speech
01' message to the Legislative Council and Assembly of
such province, 01' by proc1amation, that such bill has been
luid before His Majesty in Council, and that His Majesty
has been pleased to assent to the same,


An entry is made in the journals of the Legislative
Council of every such speech, message, 01' proclamation ;
and a duplicare of it, duly attested, is delivered to the
proper officer, to be kept among the public records of the
province.


Unless HisMajesty's assent to such bill so reserved
be so signified within two years after it is presented for
His Majesty's assent to the Governor, it has no force
whatever. (8)


COURTS OF LOWER CANADA.


The judicial establishments of the colony are few and
simple in their construction.


At both Quebec and Montreal there is a separate inde-
pendent court,-the first, the Court of King's Bench for
the district of Quebec, the second, the-Court of King's
Bench for the district of MontreaI. Both these courts
have a criminal and a civil side. There is also an Admí-
ralty Court, in which a single judge presides. Re is
generally one of the judges of the Court of King's Bench.
At Three Rivers there is a Provincial Court, ayer which
a single judge also presides, and Gaspé and St. Francis
possess each a court of the same description, From all
these courts, except the Admiralty Court, there is an ap-
peal to a Court of Appeals at Quebec, composed of the


(3) Howard's Laws of the Colonies, vol. ii. p. 1, 5. But see ante, p. 44.
The order in Council there referred to says three years.


DD




402 THE CANADAS.
Governor, 01' Lieutenant-Governor, the members of tbe
Executive Council, the Chief Justice of the Province, and
the Chief -Iustice of Montreal j any five of whom, the
judges of the court in which the judgment appealed from
has been given excepted, form a court.


The Court of King's Benck
Consists of one Chief Justice, who is styled Chief Jus-


tice of the Province of Lower Canada, and of three Puisne
Judges.


The Iaw officers of the crown are the Procureur du Roi,
the Solicitor-General, and the Advocate-General.


The Court of King's Bench at Montreal consists of a
Chief Justicc of the Court of King's Bench for the distrlct
of MontreaI, and of three other judges,


There is also a court at Three Rivers, where the Chief
Justice of Montreal presides, assisted by two other
judges.


The Provincial Court for the same district consists of
one of the judges of the Court of King's Bench of Mon-
treal, and one provincial judge.


There are similar courts for the lower district of Gaspé
and for the lower district of St, Francois, each presided
ayer by one provincial judge.


Court of Vice-Admiralty.
This court is held before one judge, who ís at present


the senior Puisne Judge of the Court of King's Bench
for Lower Canada.


Coroners,
There are three coroners, one for the district of Que-


bec, another for that of Montreal, and a third for that of
Three Hivers. Their mode of proceeding is similar to
that adopted in England, ~


Quarter Sessions.
Quarter Sessions are held at Quebec, at Montreal, at


Three Rivers, and at Gaspé, ~




THE CANADAS. 403


Salaries of Public Officet's.
From a papel' printed by the House 01' Commons in the


year 1830, (House of Commons' Papera, No. 73,) it ap-
pears that in 18:t9 the Lower Cariada Assembly voted the
following sums for the salaries of the various public offi-
cers ;-for the Governor-in-Chief ~4500; Lieutenant-
Govetfl'or .t:1500; Lieutenant-Governor ofGaspé, .[300;
nine members of the Executive Council.i'100 each(4); the
Speaker of the Legislative Council.t:900 (5); the Speaker
of the House of Assembly .t:900; the Lord Chief J ustice
of the province ~1500; the Chief Justice of Montreal
.[1100; six Puisne Judges (three at Quebec and three at
Montreal) ~900 each; and three Provincial Judges 1'600
each. The Judge of the Court of Vice-Admiralty (the
senior Puisne Judge of the COUl't of King's Bench at
Quebec) 1':200; the Procureur du Roi ~jOO; the Solicí-
tor-General 1,':200; the Advocate-General ~~OO; the
Coroner at Quebec .[100; the Coronel'. at Montreal
1'100; the Coronel' at Three Rivers .[50; the Chairman
of the Quartcr Sessions at Quebec 1'500; the Chairman
of the Quarter Sessions at Montreal .i'500; the Chair-
man of the Quarter Sessions at Three Rivers .i':250; the
Chairman of the Quarter Sessions at Gaspé .[f2f25.


COURTS IN UPPER CANA DA.


The courts for the administration of justice in Upper
Cariada appear, from the acts of the province, to be a
Court of King's Bench, a Court of Assize for each dis-
trict, a Court of Appeal, a District Court for each dis-
trict, a Court of Quarter Sessions for each district, some
petty Courts of Requests, a Court of Probate, and a
Surrogate Court for each district; there is also a Court of
Chancery, but the laws give no information respecting


(4) This would shew MI'. Bou-
chette's staternent as to the nuruber of
the Council lo be ruistaken, The
Lord Chief Justice of, the province
and the Lord Bishop of Quebec, who
sít in Council in virtue of theii office,
would of course receive no salary on
that account, and there would then
rernain, as stated in the Almanack,
nine ordinary members,


(5) In the Canadá Almanack, the
Speaker al' the Legislative Council is
stated to he the Lord Chief J ustice of
the province, In the most recen!
charters of J ustice for other colonies
tbe chief justicc o,' any puísue judge
is furbidden lo accept any othe r office,
and his acceptance, it is declarad, shall
vacate bis office of chief justice 01'
puisne judgc.


DD:2




404 THE CAN ADAS.
that, nor indeed any other courts than those which have
been just emunemted.e-Howerá, vol. ii, p. 14.


Court o/ King's Bench,


This is a Cou~t of Record, (6) and is styled "Bis Ma-
jesty's Court of" King's Bench for the Province of Upper
Canada." It possesses "an such powers and authorities as
by the law of England are incident to a superior court of
civil and criminal jurisdiction," and holds "pleas in al]
manner of actions 01" suits, as well criminal as civil, real,
personal, and mixed, arising, happening, 01' being within
the province; and iSáuthorized to proceed in -such ac-
tions, causes, 01' suits, by such pl"ocess and course as will
tend to justice and despatch, to determine the same, and
to hear and determine al] issues at law, and by a jury of
twelve men determine all issues of fact that may be joined
in any such action, cause, 01' suit, and judgments thereon
give, and execution thereon award, in as full and ample
manner as may be done by the Courts of King's Bench,
Common Pleas, 01', in matters which regard the King's
revenue, by the Court of Exchequer in England."


The judges are a chief and two puisne judges.
This court must sit in a place certain, that is, in the


city, town, 01' place where the Governor usually resides;
and the periods for its sittings are during the four terms
in each year, viz. (7) Hilary Term, which commences on
the third Monday in January and ends on the Saturday
of the ensuing week; Easter Term, which commences on
the Monday next after April 16th and ends on the Sa-
turday in the ensuing week; Trinity Term, which como
menees on the first Monday in July and ends on the Sa-
turday of the ensuing week; and Michaelmas Term,
which commenccs on the fírst Monday in November and
ends on the Saturday of the next ensuing week. Where
the court has good reason to believe that there will not
be sufficient business to require its daily attendance
throughout term, it may adjourn on any rcturn day to the
next immediate return day.-2 Howard, 14, 15.


(6) 32 veo. 3, c. 2, L. C. ('7) 3 Gco. 4, L. Cvpassed 17th Jan. 1822.




THE CANADAS. 405


Courts of Assize,
The Governor may, between Hilary and Easter and


between Trinity and Michaelmas Terms, issue commis-
sions of Assize and Nisi Prius into the several districts of
the province, for trying all issues joined in the Court of
King's Bench, in any action arising in such districts, He
may also issue a sp~ial commission at any time when ne-
cessary.-~ Howard, 15.


Court of Appeai.
The Governor, Lieutenant-Governor, 01' person adrni-


nistering the government of the province, 01' the chief
justice oftheprovince, with uny two ormore members of'the
Executive Council of the province, compose this courr.
But when any person having given the judgment appealed
from is a member of the Court of Appeal, he may assign to
the eourt his reasons for delivering such judgment, but
not give hisvote in the decision of the question before
the court.


An appeallies to this court from all judgments given in
the Court of King's Beneh, in all cases where the matter
of controversy exeeeds ~100, 01' relates to the taking of
any annual 01' other rent, customary 01' other duty, fee,
01' any other such like demand of a general 01' public na-
ture affecting future rights, of what value 01' amount
soever the same may be, upon proper security being given
by the applicant that he will effectually prosecute the ap-
peal and answer the condemnation, and also pay sueh
costs and damages as may be awarded in case the judg-
ment appealed from shall be confirmed, and upon exe-
cuting such security, execution is stayed in the original
cause.


The judgment of the Court of Appeal is final in all
cases where the matter in controversy does. not exceed
the value of ~500 sterling, except it relates to the takíng
of any annual 01' other rent, customary 01' other duty 01'
fee, 01' any other such demand of a generaland public
nature affecting future rights, of what value 01' amount
soever the same may be, in whích case an appeal líes to
the Kíng in Council, upon proper security being given by
the appellant effectually to prosecute his appeal and an-




406 . THE CANADAS.
swer the condemnation, and to pay such costs and da-
mages as shall be awarded by His Majesty in Council, in
case the judgment appealed from shall be affirmed, and
upon the perfecting of such security, execution of the
judgment. is stayed until the final determination of such
appeal to the King in Council.v-B Howard, 15, 16.


District Courts.
In each district within the province there is a Court of


Record called "'rhe District Court of ---," which is
held before one judge or more, appointed under the great
sealof the province, They hold pleas from the value of
40s. to ,fU>, and when the amount is liquidated and cer-
tain to ~40; and also in all matters of tort respecting per-


.sonal chattels, when the damages recovered shall not
exeeed ~15, and the title to Iands is not brought in
question.


They commenee their sittings on the Monday of the
week in which the Quarter Sessions for the district com-
menee, and end on the Saturday of the next week.-2
Howard,16.


Court of Probate.
This court is styled "Thc Court of Probate of the


Province of Upper Cariada," (8) and has full power and
authority to issue process and hold cognizance of all mar-
ters relative to the granting of probares, and committing
letters of administration ; and also to grant probates of
wills and commit lettcl's of administration of the goods of
persons dying intestare, having personal estates, rights,
and credits within the provínce.


The person admínístering the government of the pro-
vince presides in the court "to hear, ~ive order, decree,
01' pronounce judgment in all questjons, causes, 01' suits
that may be brought before him relative to the matters
aforesaid, and that for such purposes, he may from time
to time, when he shall be so disposed, can such person 01'
persons as he shall think propcl' to be assessor or asses-
sor s with bim."-2 Howard, 16.


(8) 33 Geo, 3, c. B, L. C.




THE CANA DAS. 407


Surrogate Courts.
Each district of the province has also a Surrogate


Court for the purpose of granting probates of wills and
letters of administration of the goods of persons dying in-
testate, having personal estate within the limits of eaeh
distrMrt respectively. The surrogate is appointed by the
Governor, but when the deeeased leaves goods, chattels,
or credits to the amount of cE5 in any district other than
wbere be usually resided at his decease.or wben he leaves
sueh boná notabilia in two or more districts, then the
Court of Probate alone has jurisdiction over sueh pro-
perty.


The Surrogate Courts for the several distriets com-
menee their sittings on the Monday of the week on whieh
the sittings of the Quarter Sessions for the district eom-
menee, and end on the Saturday of the next week.-2
Howard,16.


Law Officers of the Crown.
In Upper Canada the law officers of the Crown are an


Attorney and Solicitor-General. In tbis provinee too
there is an officer called a Reporter, but it is difficult to
say whether his office is similar to that of a master of the
Court of King's Bench in England, and he reports his
opinion on cases referred to him by the court, or whether
he performs the duty of an offieial reporter of the judg-
ments of the court on cases argued before them, as was
the praetice during the time when the Year Books were
published in England. The only mention of this officer
whieh the author has been able to find is in the list of the
judges and officers of the eourt contained in the Alma-
nack,


Justices oJ the Peace,
The members of the council are justiees of the peace


throughout their respective provinees. There are also
justiees commissioned for eaeh district in both Upper and
Lower Canada.




TItE CANADAs.


Barristers ond Attornies.
Persone called to the bar oí any superior court (not


having merely local jurisdiction) in EngIand, Scotland, 01'
Ireland, 01' in any British province in N orth America, in
which the same privi1ege is extended to Upper Canada, on
producing sufficient evidence thereof and of good charac-
ter, to the satisfaction of the Law Society there, may be
called to the bar. And no person is admissible to prac-
tise in the Court of King's Bench as an attorney, unless
he have previously served under articles for five years
with sorne practising attorney in the province.


Ecclesiasdcal Estáblisllments.
The ecclesiasticaI establishment of the Canadas con-


sists of the Lord Bishop of Quebec, who presides over
the two provinces, and is assisted by an Archdeacon of
Quebec, an Archdeacon of Kingston, and an Al'chdeacon
ofYork.


LAWS. (9)
The laws of Lower Canada are a mixture of the Acts


of the British PavIiament which extend to the colonies,
and the laws of France as they existed at the conquest in
1759. The criminallaw is the same as in England, and
is administered in the same manner.


Both the eivil and criminal Iaws of Upper Canadá are
the same as in England, and are administered in the same
way and by the same functionaries.


The tenure upon which lands are held by the seigneurs
or lords in Lower Cariada is feudal; their undertenants
hold of them somewhat in the way in which copyholds
are held in England, paying a small annual rent and a
fine upon alienations, and they are also subject to the
payment of a twenty-sixth part of the grain raised, for the
support ofthe clergy.-The Canadas as they now are, ~
a late Resident.


It is a general rule that in commissions and instructions
to Governors, and in Orders of Council and Acts of Par-


(9) Sea ante, p. :3to 16, the remarks on the general topie how far the colo-
nies are subject to the laws of thc mother country.




THE CANADAS. 409
liament, there should be a direction that the laws or ordi-
nances passed in any colony should not be "repugnant to
the laws of EngIand, but as near as may be agreeable
thereto." The peculiar circumstances of Lower Canada,
where the great body of a large population had be en ac-
customed and had become attached to other Iaws, re-
quired a departure from this rule, at least with respect to
the tenure on which the inhabitants of that province held
their lands. Several Acts of Parliament have been passed
recognizing this exception to the general rule. (1) Upon
tbese acts doubts have arisen, and for the especial pur-
pose of quieting those doubts the act of 1 Wm. 4, c. QO,
was passed. As that act recites the former acts and the
doubts tbat have been entertained upon them, as it wiII
be a sort of constitutional chárter for the colony, and as
it is not very lengthy, it has been thought advisable to
insert it here. (Q)


(1) See,ol1 this subject, ante, ~6,
aud note.


(2) 1 \Vm. 4, e. 20.-AI1 Aet to
explain and amend the Laws relating
to Lands holden in Free and Com-
mon Soecage in the Province of Lower
Canada.i--Büth March, 1831.


Whereas, by an act made in the
thirty-first year of the reign of His
Majesty King George the Third, inti-
tulcd, An Act to repealcerlain parts of
an act passed in the fourteenth year
of Bis Majesty's reign, intituled, "An
Act for making more effectual provi-
sion for the government of the pro-
vinre of Quehec in North Ameriea,
and to make further provisión for the
government of the provinee," it was,
amongst other things, enacted, that in
every case where lands should be
thereafter granted witbin the province
of Lower Canada, and where the
grantee thereof should desire the same
to be'granted in free and eommon soc-
eage, the same should be so grauted,
bnl subject, nevertheless, to sueh al-
terations, with respect lo the nature
and eonsequences of sueh tenure of
free and eommon soeeage, as might be
established by any law or laws whieh
might be made 1>y Bis Majesly, his
heirs or successors, by and with the
adviee and consent of his or their


Privy Council : And whereas, by an
aet passed in the sixth yearof his late
Majesty Kinr, George the Fourth, in-
ti luled, "An Act to provide for the
extinetion of feudal and signiorial
rights and burdens on Iands held ¡¡,
titre de fiej, and ¡¡, titre de CCn!, in the
provinee of Lower Canada, and for
the gradual conversion of those te-
nures into the tcnure of free and com-
mon soecage, and for other purposes
rclating to the said provinee," after
reeiting that doubts had arisen whe-
ther lands grauted in the said pro-
vince of Lower Canada by his said
late Majesty King George the Fourth,
or by any.of his royal predecessors, to
be holden 1J1 free andeommon soccage,
would be held by the owners thereof,
or would subsequently pass to other
persons aeeord ing to the rules of de.
seent and alienation in force in Eng-
land, or aecording to such rules as
were established by the aneient Iaws
of the said provinee, for the descent
and alienation of land situate therein,
it was thereby declared and enaeted,
that alllands within the said provincs
of Lower Callada which had thereto-
fare been granted by his said late
Majesty, his heirs, and successors, to
any person or persons, their heirs or
assigns, to be belden in free and




410 THE CANADAS.
In the year 1774 the first act of the Provincial Le-


gislature was passed, making provision for the better go-
vernment of this part of the British dominions. By this
act the English criminal law was preserved. But it was
enacted "that in all matters of controversy relative to
property and civil rights, resort should be had to the laws
of Canada for the rule and decision of the same, and all
causes that should hereafter be instituted in every court of
justiee to be appointed within the province, should, with
respect to such property and rights, be determined agree-
ably to the said laws and customs of Canada." From this
rule however it was excepted that it " should not apply to
lands which had been or should be granted in free and
common soccage."


By the constitutional act of 1791 it was próvided, with
respect to Lower Canada, that lands should be granted
in free and common soccage, if so desired, but that such


common soccage, 01' which should 01'
might thereafter be so granted by his
said Majesty, his heirs, and succes-
sors, to any person 01' persons, their
heirs, and assigns, held,¡granted, bar-
gained, sold, aliened, conveyed, and
disposed of, and might and should
pass by descent, in such manner and
form, and upon and under such rules
and restrictions, as are by the law of
England established and in force in
reference to the grant, bargain, sale,
alienation, conveyance, disposal, and
descent of landa holden by the like
tenure therein situate, al' to the dower
01' other rights of married women in
such lands, and not otherwise, any
law, custom, 01' usage to the contrary
in anywise notwithstanding; and it
was thereby provided that notbing
therein contained should exlend to
prevent His Majesty, witb the advice
and consent of the Legislative Coun-
cil and Assembly of the said province
of Lower Canada, from making and
enaeting any such laws al' statutes as
might be necessary for the better
adapting the befare mentioned rules
of the law of England, al' any of
them, to the local cireumstances of
the said province of Lower Canada
and the inhabitants thereof, And
whereas doubts have arisen how far
it is competent to His Majesty, with
the advice and consent of the said Le-


gislative Council and Assembly, 10
make and enact any laws al' statutes
establishiug rules respecting the de-
scent of lands so gra¡;lted in free and
common soccage as aforesaid, 01' re-
specting the grant, bargain, sale. alien-
ation, conveyance, 01' disposal of such
lands, al' respecting the dower al' other
rights of married womell in al' to such
lands in any case wherein such rules
are repugnant to al' at variance with
the laws of England; and it is expe·
dient that such doubts should be re·
moved: De it therefore enacted, &c.
that it shall and may be lawful for
His Majesty, his heirs, and sueces-
sors, to assent to, al' to authorize bis
01' their assent to be given lo any bilI
al' bilIs which have haretofore been al'
which may hereafter be passed by the
said Legislative Council and AilSCm.
bly, for regnlating the deseent, grant,
bargain, sale. alienation, conveyance,
01' disposal of any lands which are
now, 01' which may hereafter be belden
in free and common soccage within
the said province of Lower Canada,
01' for regulating the dower 01' other
rights of married women in such
Iands, any reptignancy, 01' supposed
repugnancy of any such regulations, to
the law of England, al' to any of the
provisions in. the before recited acts of
Parliament 01' either of them contained
to the contrary notwithstanding,




THE CANADAS. 411
grants should be subject to such alterations, as to the na-
ture and consequences of that tenure, as might be made
by the Provincial Legislature with His Majesty's appro-
bation.-Rep. Select Committee, House of Commons'
Papers, 569. .


A bill has also been passed to encourage emigration, by
which foreigners may purchase and hold lands in this pro-
vince, and convey the same in fee simple; and at the ex-
piration of five years, having complied with certain condi-
tions of registry, &c. and taking the oath of allegiance,
shall be considered natural born subjects of His Majesty,
and be admitted to all the privileges of subjects, with the
right, under the provincial statutes, of voting at elections
and being returned to serve in the Provincial Parliament,
afier. having completed a residence of seven years in the
provmce.


This bill is one of those reserved for His Majesty's
pleasure.-Quebec Mercury, March 31st, lSQ9.


The author has not been able to learn whether this bill
has been assented to, but most probably it has, for there
is nothing in it which cannot be justified by the prece-
dents of acts in other colonies. (See the Colonial Acts of
Jamaica, 35 Charles 2, c. 3, and of Antigua, 1 Arme, 28th
June, 1702.) Indeed, but for the purpose of fixing the
period of naturalization at the end of five years' residence
in the colony, there would have been no necessity for this
colonial act, for by the act 13 Geo. 2, c. 7, foreigners
living seven years in any of the British colonies in Ame-
rica, and who shall not have been absent therefrom more
than two months at any one time, are to be deemed na-
tives upon taking certain oaths therein mentioned in
open court before the judges of the colony where they
reside. By the act of 1 Wm. 4" sess. 1, c. 54, (1830,) it
is now provided that aH persons naturalizad by any act
of the Legislative Council and Assembly of the pro-
vince of Lower Canada, assented to by His Majesty, his
heirs 01' successors, shall henceforth be deemed compe-
tent in the law to be summoned to the Legislative Coun-
oil of thesaid province of Lower Cariada, and to vote at
the election of members to serve in the Legislative As-
sembly of the said provinee, and to be elected at any such
election. Such bill of naturalization in the province must
be reserved for His Majesty's pleasure, and cannot be as-
sented to by the Governor,




( 419! )


NEW BRUNSWICK.


-


THIS province formerly constituted part of N ova Scotia.
(See the account of that colony, post.) In 1784 it was
erected into a distinct province, and a royal charter of
constitution was granted to it. In accordance with this
charter it is now governed by a Governor, a Council,
and a House of Assembly.


The Council of N ew Brunswick consists of eleven
members, the Chief Justice of the province being the
president, and the Lord Bishop of Nova Scotia having
a seat next to him in right of his office. The House of
Assembly consists of twenty-eight members.


COURTS.


The courts are, the Court of Chancery, of which the
Governor is chancellor, The Supreme Court is composed
of one chief justice and three puisne justices.


There is a court of the Governor and Council for hearing
and determining causes relating to marriage and divorce.
The Governor is the president of the COUl't, one of the
puisne justices of the supreme court is the vice-president,
and all the council are members.


There is a Court of Vice Admiralty, and a court for
the tria] of piracy and offences upon the high seas.
The latter court is composed of the chief justice and the
judges of the Supreme Comt; the former is presided
over by a commissioner.


There is acourt for the probate of wills and granting
of administrations, The clerk of the crown in Chancery
is the registrar of this court.-New Brunswick Almanack
for 1833.


The salary of the chief justice is cf750, that of the
assistant justices .f500 each. There is a Court of Com-
mon Pleas in each county of the province. Debts under
cf5 are recovered befare magistrates, who also take cog-
nizance of breaches of the peace. The laws of England,
and the local laws enacted in the Assembly, prevail in the
province.




NEW BRUNSWICK. 413


Regiatration of Deeds and Wills.
~6 Geo.3, c. 3. An Act for the Public Registering of


all Deeds, Conveyances, and Wills, and other incum-
brances which shall be made of, 01' that may aifect any
Lands, Tenements, or Hereditaments within this Pro-
vince.


Sect. l. Deeds and wills affecting lands to be registered
at lengfh, 01' (as to deeds) to be void against subsequent
purchaser 01' mortgagee, whose deeds are first registered,
and as to wills to be void.
5~ Geo. 3, c. ~O. An Act supplementary to the Acts(l)


now in force for the Public Registering of Deeds, Con-
veyances, Wills, or other Incumbrances of, 01' which
may affect any Lands, Tenements, or Hereditaments
within this Province, and for the more effectually secur-
ing the Title of'Purchasers of Real Estates against Clairns
of Dower.


Sect. 1. If grantor in deed of'Iand live in a foreign state,
the acknowledgrnent of proof thereof may be had before
a British envoy there, and certified thereon under his
hand and seal; 01' if in the United Kingdom, before
a chief magistrate of, and certified under the seal of
a city, borough, 01' town corporate, 01' the seal of office
of such chief magistrate. Such acknowledgments 01'
proofs to be registered with the deeds, pursuant to ~6
Geo.3, c.3.
~. Deeds acknowledged 01' proved before any court 01'


person heretofore 01' hereby authorized to take the same,
and duly registered, deerned effectual without livery of
seisin 01' other ceremony.


wtu;
~6 Geo. 3, C. 11. An Act relating to Wills, Legacies,


Executors, and Adrninistrators, and for the settlement
and distribution of the Estates of Intestates.


Sect. I, Devises to be signed by devisor, 01' in his
presence and by his directions, and attested by three wit-
nesses. •
~. Devise revocable only by another will 01' other


writing, signed before three witnesses declaring same, 01'
by destruction of the first will.


(1) 26 Geo.S, c.3; 27 Geo.3, c.9; 32 Geo.S,c.2; 33 Geo.3,c.5.




414 NEW BRUNSWICK.
3. Nuncupative will of aboye ..eSO bad, unless proved


by oath of three witnesses, and testator bid persons pre-
sent witness same, and unless same be made in last ill-
ness of deceased,and where he dwelt for ten days before,
except he be ill from home and die there.


4. After six months from speaking such will, no proof
thereof to be received, unless put in writing in six days.


5. N o probate of nuncupative will to be granted till
fourteen days after testator's death, nor till widow 01' next
of kin cited.


Debts.
26 Geo, 3, c. 12. AnAct subjecting Real Estates in


the Province of New Brunswick to the Payment of Debts,
and directing the Sheriff in'his proceedings theréon,


Sect, 1. Real estate Hable for owners' debts, and made
chattels for that purpose.


26 Geo, 3, c. lS. An Act for relief against Abscond-
ing Debtors.


Sect. 1. Where debtor absconds 01' conceals himself,
his creditors may prove same on oath before judge of
Supreme Court, who may issue warrant to the sheriff to
attach and keep the debtor's estate; such sheriff with two
freeholders to make inventory of such estate, and return
same to the judge. Made perpetual by 47 Geo.3, c.15.


Frauds and Perjuries,
26 Geo. 3. c. 14. An Act for prevention of Frauds


and Perjuries, forprevention ofmany fraudulent practices
which are commonly endeavoured to be upheld by perjury
and subornation of perjury,


Sect, l. AH estates and interests in land not in writing,
and signed by the parties making the same, 01' their agents
authorizcd in writing, to be estates at will only.


2. Exceptleases for terms not cxceeding three years,
at rack rento


12. Judgments as against purchasers to.be such only
from signing thereof


13. Executions to bind personal estate from delivery
thereof to the sheriff, who must indorse thereon such
time of delivery.




NEW BRUNSWICK. 415


Rate oj Interest,
26 Geo. 3, c. 17. An Act for establishing the Rate of


Interest.
The legal rate of interest to be.1:6 per cent, per an-


num, and all securities reserving more to be void.


Absent Proprietors.
26 Geo.3, c. 4·0. An Act to oblige Absent Proprietors


to paya Proportion of any Public Charge, and to repair
Highways. _


Sect. l. Every proprietor of land to pay his quota of
county rates, and do his proportion of county labour.


2. Ir any such proprietor be absent, and no person ap-
peal' for him in six months after public notice to pay, 01'
do his quota of rates 01' labour, and he have no sufficient
distress, any three justices of the peace, quorum unus.
ma)' let sufficient of his lands for the purpose; 01' if no
lessee can be had, may order sheriff to sell the same at aue-
tion, who mayexecute proper conveyances to the pur-
chaser, and put him in possession.


A similar power is vested by 26 Geo. 3, c.45, in the
commissioners of sewers,


Douer.
27 Geo.3, c. 9. An Act for more effectually securing


the Title of Purchasers of Real Estates against claims for
Dower.


Deed to bar a married woman,of dower must be by her
executed, and she must be examined touching her free-
will therein by one of the Council, 01' a judge of the
Supreme Court, 01' of an inferior Court of Common Pleas
in the province; and such examination indorsed on and
registered with such deed,


32 Geo. 3, c. 2. An Act in amendment of an Act,
(27 Geo.3, c. 9;) intituled "An Act for more. effectuaHy
securing the Title of Purchasers of Real Estates against
claims of Dower," and also to enable jemes covert more
easily to convey any real estate they may hold in their
own ríght.


Sect. 1. Married woman absentee may acknowledge
deed to bar dower, if in the United Kingdom, before
a judge of King's Bench, 01' Common Pleas, 01' Exche-




416 NEW BRUNSWICK.
quer, 01' Master in Chancery, or Judge 01' Lord of Coun-
cil 01' Session in Scotland, and if in any other British
dominion, before a judge of the Supreme Court of Judi-
cature; such acknowledgment to be ccrtified thereon, and
certificate to be authenticated, if in the British plantations,
under the hand and seal of the Governor there, and if in
the United Kingdom by an affidavit, certified undel' the
seal of some corporation there; and absentee may ac-
knowledge such deed before a British envoy abroad;
same to be certified thereon under his hand and seal.


2. 'I'he acknowledgment of deeds made by married
women of their land in the province may be taken and
certified in like manner as deeds to bar them of dower.


33 Geo, 3, c. 5. An Act in amendment of an Act, inti-
tuled "An Act for more effectually securing tbe Title of
Purchasers of Real Estete against claims of Dower,"


The acknowledgment by a married woman of any deed
wherein the consideration-money does not exceed 1'9200,
may be made before a justice of tbe peace in New Bruns-
wick, 01' the registrar of deeds in the county where the
premises lie.


Absconding Debtors.
Q8 Geo. 3, c.2. An Act in an addition to an Act, inti-


tuled "An Act for relief against Absconding Debtors."
Sect. 1. All real and personal estate of persons in-


debted in 40s. departing from New Brunswick, may be
proceeded against according to :26 Geo. 3, c. 13. Appli-
cant for such process must prove that debtor left the
province after debt incurred, and has not resided therein
for six months previous to such application, and no
trustees may be appointed till six months after public
notice given according to sueh acto Made perpetual by
47 Geo.3, c. 15.


Laws of the Prooince.
31 Geo.3, c.:2. An Act to declare that no Act passed


in the General Assembly of the Province of Nova Scotia
before the erection of the Province of N ew Brunswick
shall be of force in this province. '


N o law of N ova Scotia made before the erection of the
Province of N ew Brunswick to be in force in N ew
Brunswick.


This act not to have a retrospective operation,




NEW BRUNSWICK. 417


Estates rsu.
36 Geo, 3, c. 4. An Act for preventing unnecessary


expense and delay in the process of barring Entails, and
for establishing a plain and easy form of conveying and
assuring Estates Tail.


Sect. l. Tenant in tail of land, the reversion whereof
is not in the crown, may by deed duly made, authenti-
cated, and regístered, bar the entail, and such deed
having words sufficient to pass afee, shall have the same
operation as if the maker had levied a fine with proclama-
tions 01' suffered a recovery.


2. In conveyances of estates tail by a feme covert, the
acknowledgment thereof, and her examination, must be
taken and certifled according to 27 Geo.3, c. 9, 01' 3~
Geo.3, c.2, (see ante, 415.)


Insoloent Debtora.
47 Geo. 3, c.2. An Act for the further relief of Debtors


with respect tú the Imprisonment of their Persons.
Sect. l. Any creditor 01' his executor may declare hís


consent to the discharge of his debtor in execution, with-
out prejudicing his right against such debtor's estate, and
such debtor shall never after be taken in execution on
such judgment, 01' in any action thereon,


En




418 )


NEWFOUNDLAND.


'-
NEWFOUNDLAND is a large island of North America, Iying
between the 46° and 51 0 of north latitude, and 530 and 58°
of west longitude. The form is that of an irregular triangle,
the base, 01' south side, being 80 leagues in extent, tbe east
side is the longest, the whole circumferenoe being about
J50 leagues. It is bounded on the north by the Straits
of Belleisle, which separate it from Labrador, on the
east and south by the Atlantic Ocean, and on the west
by the Gulf of St. Lawrence. The climate is rather
severe, and the soil on the sea coast not fertile. The
country within land is mountainous, and abounds with
timber. There are several rivers, which are plentifully
stored with fish, and the island possesses besides abundo
ance of deep bays and many good ports.-Ency. Brit,


N ewfoundland, like other new-discovered lands in
América, was endeavoured to be settled and improved by
means of charters granted by the crown. Such charters
were granted at five different times. The first was in
1M8 to Sir Humphrey Gilbert, who had thereby full
power given him to possess alllands in Newfoundland not
in actual possession of any Christian prince. By virtue of
this authority, he in ]583 landed in St, John's Bay, and,
we are told, that calling the English and strangers, then
fishing, together, he took possession of the country in the
Queen's name, and erected the arms of England upon
a pillar of wood, in testimony of her Majesty's sove-
reignty.


The second chárter was granted in 1610 by James I.
to the Earl of N orthampton, Sir Francis Bacon, and
several others, by name of the Treasurer and Company of
Adventurers and Planters of the Cities of London and
Bristol for the Colony of Newfoundland.


Two other charters were granted in like manner, the
first to Sir George Calvert of a tract of land, called the
Province of Avalen, and the second, to the Marquis of


•




NEWFOU NDLAND. 419
Hamilton, Earl of Pembroke, Earl of Holland, Sir David
Kirk, and others j and under the pretence that Lord
Baltimore, the heir of Sir George Calvert, had deserted
the plantation, this grant included the province of Avalon,
(see post, n, (3), p. 4522.) In these grants the free liberty
of fishing, salting and drying of fish, was expressly se-
cured to the English in general.


In 1615 Captain Richard Whitburne was sent out with
a commission from the High Court of Admiralty, autho-
rizing him to impanel juries, and to make inquiry upon
oath of sundry abuses and disorders committed every
year among the fishermen on that coast.


On the 20th of February, 1633, a fifth charter was
granted by the Star Chamber to the merchants and
traders of Newfoundland, laying down certain rules re-
specting the managernent of the fishery.


In 1650 the Council of State gave to Jolm Treworgay,
a merchant, who was then in the island, a cornmission to
order affairs there for the best advantage of the state,


After the Restoration, Lord Baltimore obtained orders
in 1660 for the restitution of the province of Avalon.


Sorne application seems to have been made to the go-
vernment for a Governor for the colony, for in 1667 peti-
tions from Totness, Plymouth, and Dartmouth, all of
which were engaged in the Newfoundland fishery, were re-
ceived against such an appointment, and the petitioners
alleged the inability of the colony to support such an ex-
pense. These petitions were supported by evidence. The
objections of the petitioners were adopted, but in order
to regulate the affairs of the colony, it was recommended
by the gentlemen, to whom the 'petitions had been re-
ferred by his Majesty, that a chaplain should be sent out
in the convoy ships, and that the captains of the said
ships should have power to regulate abuses there.
" Additional rules" were afterwards passed in the council
for the purpose of the regulation of the colony, and
finally it was ordered, that a bill should be prepared to
pass the great seal, for the confirmation of the last
charter with these additional powers, and that MI'. Attor-
ney-General should present to the board sorne way of
judicature for the determining of causes in Newfound-
land, A special report was afterwards made on the sub-
ject of sending out a Governor and founding a colony,
and the praject was discouraged chiefly on the graund
that the colonists would get their wants supplied from


EE2




420 NEWFOUNDLAND.
New England instead of from home; and their lordships
therefore proposed, "that all plantations in Newfound-
land should be discouraged, and in order thereunto, that
the commander of the convoy should have commission to
declare to all the planters to come voluntarilyaway, 01'
eIse that the western charter should from time to time be
put into execution, by which all planters were forbid to
inhabit within six miles from shore, from Cape Race to
Cape Bonavista.' This report from the Lords of the
Council was approved of by his Majesty.


Sil' John Berry was sent out as commander of the
convoy, He was specially directed to lay before the
council the státe of N ewfoundland as he found it with
reference to the planters and the western adventurers.
He did so, and that account directly contradicted all the
statements made by the'western adventurers, on which
the aboye report had be en founded, The question of
the foundation of a colony was again discussed in 1696.
The interest of the western adventurers under the char-
ter was still in a great degree predominant. In 1698 (10
and 11 Wm. 3, c. 525,) was passed the first act of Parlia-
ment on the subject, entitled "An Act to encourage the
trade to Newfoundland," but in that act the policy of
former times seems to have been too blindly followed.-
Reeve's Hist. Newfoundland, 1 to 31.


After the peace of Utrecht the condition of Newfound-
Iand became the subject of frequent and earnest discus-
sion, and finally in 17528 a commission was issued to Captain
Henry Osborne, revoking so much of the commission to
the Governor of Nova Scotia as related to the govern·
ment of any of the forts in N ewfoundland j and it went
on to appoint Henry Osborne Governor and Comman,
der-in-chief in and over our said island of Newfound-
land, our fort and garrison at Placentia, and all other
forts and garrisons erected 01' to be erected in that
island. It then gave him authority to administer oaths,
to appoint justices of the peace, with other necessary
officers and ministers for the better administration of jus-
tice and keeping the peace and quiet of the island.s--
Reeve's Hist. 352 to 75.


In 1730, it seems, that under the authority of this com-
mission Captain Osborne claimed a right, by the means
of the justices of the peace whom he had appointed, to
impose upon the inhabitants a tax for the purpose of
building a prison, This attempt was resisted, and a case




NEWFOUNDLAND. 421
was laid before MI'. Attorney-General Yorke, in which
the commission was stated, and his opinion desired upon
it, The Attorney-General(1) reported as follows:-


" I have considered the said queeries, and upon the
first thereof do conceive that the justices of the peace
had not sufficient authority to raise money for building
a prison, by laying a tax upon fish caught, 01' upon fishing
boats, the rather because the act of the 10 and 11 Wm. 3,
for encouraging the trade to Newfoundland, directs that
it shall be a free trade.


"As the justices of the peace in Newfoundland are,
by their commissions, to act according to the laws of Eng-
land, I apprehend they ought to have pursued this act of
Parliament as near as the circumstances of the case would
admito


"Neither Captain Osborne nor the justices of the
peace have powel' to raíse any tax for repairing churches,
01' any other public works, except such works for which
power is given to justices of the pea ce in England to
levy money by particular acts of Parliament."


The exercise of the new Governor's authority was also
opposed by the western adventurers, who by themselves
and their fishing admirals thwarted every measure that
was projected. The opinion of the Attorney-General
y orke was taken on the question, how far the commission
of Captain Osborne had the effect of superseding the
jurisdiction formerly exercised by the fishing admirals,
and he reported his opinion in favour of the powers
granted to Captain Osborne, whose authority was thus
declared to be legally established.


N othing material appears respecting the civil govern-
ment of N ewfoundland till the year 1737, when the
Board of Trade listened to the representation that had
frequently been made by the Governor, of the inconveni-
ence of sending over to England for trial persons who
had committed capital felonies. The board prepared
a commission to Captain Vanbrugb, containing a clause
authorizing him to appoint commissioners of oyer and ter-
miner, but the Privy Council, when the commission carne
before them, struck out this authority, In 1750, when
Captain Rodney was Governor, he pressed the Secretary
of State for such a power to be granted. The Board of
Trade thought the matter might be managed by an in-


(1) 2 Chal. Opino 232.




NEWFOUNDLAND.


struction to the Governor, but on consulting Sir Dudley
Ryder,he declared that such a power could not be
granted otherwise than under the great seal, (f~) though
the manner of exercising it might be prescribed by in-
struction, but that the power of trying 01' of pardoning
treason ought not to be entrusted to the Governor, 01' to
any court erected by him, A commission, prepared on
the authority of this opinion, was accordingly issued to
Captain Francis WiUiam Drake in April, 1750. In the
year 1754 Lord Baltimore claimed to be put in possession
of a large tract of land in the island, by the name of the
Province of Avalon, and of aH the royal jurisdietions and
prerogatives thereto belonging, and that His Majesty
would approve of Jolm Bradstreet, Esq. as Governor
thereof. This claim was referred by the Board of Trade
to the Attorneyand Soliditor-General, who, in May, 1734,
reported decidedly against aHowing it, (3) The question
whether Newfoundland was une of the plantations, and, as
such, subject to the navigation laws, was afterwards form-
a11y discussed and decided in the affirmative, upon the
seizure of a ship there for want of being provided with a
certificate of registry. This discussion, at such a period,
is somewhat curious, since custom-house officers had long
before been appointed ; and among the books sent out by
the Board of Trade with the first Governor Osborne in
17:?9, was a bundle containing the acts relating to the
trade and navigation of this kingdom(4) The coast of
Labrador was, by proclamation in 1763, annexed to the
island of Newfoundland, but separated from it, and an-
nexed to Canada by the Quebec Act, 14 Geo.3, c. 83.


In the year 1765 a Court of Vice-Admiralty was first
placed at Sto-Iohn's.


The first statute framed to establish, according to
English forms, a regular court of civil justice, was passed
in the year 1790-1791. It was only to continue for one


(2) 2 Chal. Opino 241-
(3) The question had already been


decided in the case of New Hamp-
shire, where lands originally granted
on condition oí being settled and
planted, were resurned bv the crown
on tbe non performance o-fthe cundí.
tion, Attorney and Solicitor-General
Ryder and Murray reportcd (1 Chal.
Opino 150,) that they were clearly of
opinion that the crown migh t resume
the Iands granted on condítion oE


settling in three years, where there
had in fact beeu no settlernent,
MI'. \Vest had in 1723, in like man-
ner reported , that "it was a maxim
of law that a title to the possession
01' lands in the colonice must neces-
sarily be supported by an actual culo
ture and planting, and that conse-
quently the neglect of the one would
extinguish tbe othcr," 2 Chal. Opinó
4,1.


(4) Hecve's Hist, 73.




¿¡EWFOUNDLAND.' 4~3
year. After the end of that period another act in 1792
was proposed, making some alterations in the method pre-
scribed by the former aet. This latter sta tute was also
to continue only for one year. Other statutes were after-
wards passed, but that under which Newfoundland is at
present governed, is the 5 Geo. 4, c.67, under the autho-
rity of which its present charter of j ustice has been issued.
(See ante, p. 2~, n, (7).)


As N ewfoundland has now received the grant of a Le-
gislative Assembly, (see ante, pp. 22 and 80,) and as the
instructions and proclamation under which it is convened
may be of importance in ascertaining its powers, and
those of the Governor with relation to the courts esta-
blished by the Charter of Justice, it has been deemed
advisable to present them in this book. They will be
found at the conclusion oí the following Charter of Jus-
tice,


CIIARTER OF JUSTICE.


GEORGE the FOt:RTH, by the grace of God, of the United Kíngdom of
Great Britain and Ireland King, Defender of the Faith, and so forth.
To all to whom these presents shall come, greeting: Whereas b>;an Act
of Parliament passed in the fifth year of our reign, intituled "An Act
for the better adrninistration of Justice in Newfoundland, and for other
purposes," it is (amongst other things) enacted, that it shall and may
be lawful for us by our charler 01' letters-patent under the great seal to
institute a superior court of judicature in Newfoundland, which shall
be caBed" The Supreme Court of NewfdundJand." And it is thereby
further enacted, that the said Supreme Court shall be holden by a Chief
Judge and two Assistant J udges, being respectively barristers in Eng-
land 01' Ireland of at least three years standing, 01' in some of our
colonies 01' plantations. And it is thereby further enacted, tbat it shall
and may be lawful for us by any such charter 01' letters-patent as afore-
said to institute Circuit Courts in each of the three districls in which
the said coJony may be so divided as in the said act mentioned. And
it is thereby further enacted, that it shall be lawful for us, our heirs
and successors, by such chárter 01' letters-patent as aforesaid, 01' by any
order 01' orders to be thereafter issued by and with the ad vice of our 01'
their Privy Council, to make and prescribe, 01' to authorize and em-
power the said Supreme Court of Newfouudland, under such limita-
tions as we shall deem proper, to make and prescribe such rules and
orders touching and concerning the forms and manner of proceeding in




4·24 NEWFOUNDLAND-CHARTER or JUSTICE.
the said Supreme Court and Circuir Courts respectively, and the prac-
tice and pleadings upon all indictments, informations, actions, suits, and
other matters to be therein brought; 01' touching 01' concerning the
appointing oí commissioners to take bai! and examine witnesses; the
taking examinations of witnesses de bene esse, and allowing the same as
evidence; the granting of probates of wills and letters of administra-
tion j the proceedings of the sheriff and his deputies, and other minis-
terial officers; the summoning of assessors for the trial of crimes and
misdemeanors in the said Circuit Courts j the process of the said
court, and the mode of executing the same; the cmpannelling of juries ;
the admission of barristers, attornies, and solicitors ; the fees, poundage,
01' perquisites to be lawfuUy demanded by any officer, attorney, 01' soli-
citor in the said courts respectively; and all other matters and things
whatsoever touching the practica of the said courts a!t to us, our heirs
and successors, shall seem meet for the proper conduct of business in
the said courts; and such rule~ and orders from time to time to alter,
amend, 01' revoke, as to us, our heirs and successors shaU seem requisite.
Aud it is thereby further enacted, that it shall and may be lawful for us
by our said chartsr 01' letters-patent to allow any person 01' persons
feeling aggrieved by any judgment, decree, order, 01' sentence of the
said Supreme Court, to appeal therefrom to us in council in such man-
ner, within such time, and under and subject lo such rules,regulations,
and limitations as we by such charter 01' letters-patent shall appoint
and directo Now K"OW YE, that we, upon full consideration of the
premises and of our especial grace, certain knowledge, and mere mo-
tion, have, in pursuance and by virtue of the said Act of Parliament,
thought lit to grant, direct, and appoint, and by these presenta do ac-
cordingly grant, direet, and appoint, that there shall be within our said
colon)' of N ewfoundland a court, which shall be called "The Supreme
Court of Newfoundland." And we do hereby create, erect, and eonsti-
tute the said Supreme Court of Newfoundland to be a Court of Record,
and do direct and appoint that the same shaU be composed of and
holden by one Chief Judge and two Assistant Judges. And we do
hereby give and grant to our said Clrief Judge rank and precedence
aboye and before all OUr subjects whomsoever within the colon)' of
Newfoundland aforesaid, and the islands, territories, and places de-
pendent thereupon, excepting the Governor 01' acting Governor for the
time being of the said colony, and excepting all such persons as by Jaw
01' usage take place in England before our Chief J ustice of our Court
of King's Bench. And we do hereby give and grant to our said Assist-
ant Judges rank and precedence within our said colon)', and the
islands, territories, and places dependent thereupon, next after our
said Chief Judge, the said Assistant Judges lakingprecedence between
thernselves according lo the priority of their respective appointments to




NEWFOUNDLAND-CHARTlm OF JUSTICE. 4125
the said office, or where they may be both appointed at the same time,
then according to their seniority as barristers. And we do further
grant, ordain, and appoint, tbat the said Supreme Court of Newfound-
Iand shall havs and use, as occasion may require, a seal bearing a de-
vice and impression of our royal arms with in an exergue 01' label sur-
rounding the same, with tbis inscription, "The Seal of the Supreme
Court of Newfoundland." And we do bereby grant, ordain, and ap-
point, that the said seal shal1 be delivered to and kept in tbe custody of
the said Chief Judge. And we do furtber grant, ordain, and declare,
that tbe said Chief J udge and Assistant J udges, so long as they shall
hold their respective offices, shall be entitled to have and receive the
fol1owing salaries, that is to say, our said Chief Judge a salary of .f1200
sterling money by tbe year, and each of our said Assistant Judges
a salary of .f700 like sterling money by the year. And our Governor
01' acting Governor for the time being of the said colony is hereby
directed and required to cause such salary to be paid to the said Chief
Judge and Assistant Judges out of the revenue of the said colony, by
four quarterly payrnents al tho four most usual days of paymenl in the
year. And we do further grant, ordain, and declare, that the said sa-
lary shall commence and take place in respect to any person who shall
be resident in Great Britain or Ireland at the time of his appointment,
upon and from the day on which any sueh person shall thereupon ern-
bark or depart from Great Britain or Ireland for Newfoundland to take
upon him the execution of the said offiee; and that the salary of any
such Chief J udge or Assistant J udge, who shall at tbe time of bis
appointment be resident in Newfoundland aforesaid, shall commence
and take place from and after his taking UpOtl him the execution of
sueh his office, and that such salary shall be in lieu of all fees of offiee,
perquisites, emolumenls, and advantages whatsoever ; and that tlO fee
of offiee, perquisile, ernolument, or advantage whatsoever, other tban
and except the said salary, shall be accepted, received, or taken by such
Chief Judge or Assislant Judges in any manner 01' on any aecounl or
pretence whatsoever, Provided nevertheless, that it sball be lawful for
the said Chief Judge or Assistant Judges to occupy and inhabit any
official house 01' residence within tbe said colony of Newfoundland,
which hath been or may hereafter be provided for their or any of their
residenee and occupation without paying to us, our heirs and succes-
sors, any rent for the same, aud without being obliged to repair, up-
hold, or maintain any sueh house or offieial residence at his own costs
and charges. And we do further grant, appoint, and declare, that no
Chief Judge or Assistant Judge of the said Supreme Court of New-
foundland shall be capable of accepting, taking, or performing any
other office or place of profit or emolument, on pain that the acceptance
of any such other office or place as aforesaid shall be, and be deemed




400 NEWFOUNDLAND-CHARTER OF JUSTICE.
in law de Jacto an avoidance of the oflice of such Chief Judge 01' As-
sistant J udge as the case may be, and the salary thereof shall cease
and be deemed to have ceased accordingly from the time of such ac-
ceptance of any such other office 01' place. And we do hereby consti-
tute and appoint our trusty and well beloved Richard Alexander
Tucker, Esquire, to be the first Chief J udge of the said Supreme Court
of N ewfoundland, the said Richard Alexander Tucker being a barrister
in England of three years standing and upwards. And we do hereby
constitute and appoint our trusty and well beloved Augustus Wallet
Des Barres, and John William Molloy, Esquires, to be the first Assist-
ant Judges of the said Supreme Court, the said Augustus Wallet Des
Barres and John William Molloy being respeetively barristers of three
years standing and upwards. And we do hereby grant, direct, and
appoint, that there shall be within our said colony of Newfoundland
three Circuit Courts, to be heId in each of the three districts into which
the said colony may be divided in pursuance of thesaid Act of Parlia-
mento And we do hereby erect, create, and constitute the said Circuit
Courts respectively to be Courts of Record, and do direct and appoint
that each of the said Circuit Courts shal! be holden by the Chief J udge
01' one of the Assistant Judges of the Supreme Court of Newfound-
land aforesaid. And we do direct and appoint, that the Chief Judge
of the said Supreme Court shal! be always at liberty to decide which of
the three Circuit Courts shall be holden by him, and that the senior
Assistant Judge shall be always at liberty to decide which of the two
remaining Circuit Courts shall be holden by him, And we do hereby
ordain, appoint, and declare, that there shall be and belong to the said
Supreme Court and Circuit Courts respectively such and so many
oflicers as to the Chief Judge of the saíd Supreme Court for the time
being shall from time to time appear to be necessary for the administra-
tion of justice, and the due execution of al! the powers and authoríties
which are granted and committed to the said Supreme Court and Cir-
euit Courts respectively by the said Act of Parliament 01' by these our
letters-patent. Provided nevertheless, that no office shal! be created in
the said courts 01' auy of them, unless the Governor 01' acting Governor
for the time being of our said eolony shal! first signify his approbation
thereof to our said Chief Judge for the time being, in writing under
the hand of such Governor 01' acting Governor as aforesaid. And we
do further ordain and direct, that al! persons who shall and may be ap-
pointed to the several offices of Master, Registrar, Accountant-General,
01' Prothonotary of the said Supreme Court 01' Circuit Courts in New-
foundland, 01' to any oflice in the said courts 01' any of them, whereof
the duties shall correspond to those performed by the Master, Registrar,
Accountant-General, 01' Prothouotary of any or either of our Courts of
Record at Westminster shall be so appointed by our heirs and sueces-




NEWFOUNDLAND-CHARTER OF JUSTICE. 427
sors by warrant nnder our 01' their royal sign manual to hold such their
offices during our 01' their pleasure; and that all persons who shall and
may be appointed to any other officewithin the said Supreme Court of
Newfoundland, 01' within the said Circuit Courts of Newfoundland,
shall be so appointed by the Chief Judge for the time being of the said
Supreme Court, and shall be subject and liable to be removed from
such their offices by the said Chief Judge upon reasonable and suffí-
cient cause. And we do hereby authorize and empower the said
Sopreme Court of Newfoundland to approve, admit, and enrol such
and so many persons having been admitted barristers at law 01' advo-
cates in Great Britain 01' Ireland, 01' having been admitted writers,
attornies, 01' solicitors in one of our Courts at Westminster, Dublin, 01'
Edinburgh, or having been admitted as proctors in any Ecclesiastical
Court in England, to act as well in the character of barristers and ad-
vocates as proctors, attornies, and solicitors in the said Supreme Court
of Newfoundland; and which persons so approved, admitted, and en-
rolIed as aforesaid, shall be and are hereby authorized to appear and
plead and act for the suitors of the said Supremo Court, subject always
to be removed by the said Supreme Court from their station therein
upon reasonable cause. And we do further authorize the said Supreme
Court of Newfouridland to admit and enrol as barristers, advocates,
proctors, attornies, 01' solicitors therein, such and so many persons as
may have served a clerkship under articles in writing for the term of
five years at the least to any barrister, advocate, proctor, attorney, 01'
solicitor of the Supreme Court aforesaid. And we do declare, tbat no
person 01' persons other than the persons aforesaid shall be allowed to
appear, plead, 01' act in the said Supreme Court of Newfoundland for
01' on behalf of the suitors of the said court 01' any of them. Provided
always and we do ordain and declare, that in case there shall not be
a sufficient number of such barristers a~ law, advocates, writers, attor-
nies, solicitors, and proctors, 01' of persons so admitted and enrolled as
aforesaid to act as such within the said colony competent and willing to
appear and act for the suitors of the said Supreme Court, then
and in that case the said Supreme Court of Newfoundland shall
and is hereby authorized to admit so many other fit and proper per-
sons to appear and act as barristers, advocates, proctors, attornies,
and solicitors as may be necessary, according to such general rules and
qualifications as the said Supreme Court shall for that purpose make
and establish, And we do hereby authorize the said Supreme Court to
make and prescribe such rules and orders as to them may seem expe-
dient and necessary with regard to the admission of persons to practise
the law, and appear and act in the character of barristers and advo-
cates, proctors, attornies, and solicitors in the said Circuit Courts re-
spectively. And we do hereby ordain and declare, that the Gover-
nor 01' acting Governor for the time being of the said colony of New-




428 NEWFOUNDLAND-CHARTER OF JUSTICE.
foundland shall yearly, on the Monday next following the first day of J a-
nuary in each year, by warrant under his hand and seal, nominate and
appoint some fit and proper person to act as and be the Sheriff for our
said colony of Newfoundland and its dependencies, (other than and
except the coast of Labrador,) for the year ensuing, which Sheriff, when
appointed, shall as soon as conveniently may be, and before he shall
enter upon his said office, take before the Governor or acting Covernor
of our said colony, an oath faithfully and impartially to execute the
duties of such his office; and such Sheriff shall continue in such his
office during the space of one whole year, to be computed from the said
Monday next following the first day of January in each year, and until
another Sheriff shall be appointed and sworn into the said office; and
in case any such Sheriff shall die in his said office, or depart from our
said colony of Newfoundland and its dependencies, then and in such
case another person shall, as soon as conveniently may be after the
death or departure of such Sh~riff, be in like manner appointed and
sworn in as aforesaid, and shall continue in his office for the rernaiuder
of the year, and until another Sheriff shall be duly appointed and sworn
into the said office. And we do further direct and appoint, that it shall
anrl may be lawful for the Governor or acting Governor of our said
COIOIlY to renew from year to year the appointment of the same person
as Sheriff for our said colony and its dependencies ; and that in select-
ing the person to be appointed to the execution and discharge of the
said office, the said Governor or acting Governor shall conform to such
written instructions or commands as may from time to time be signifíed
by us, our heirs or successors, to hirn through one of our or their
Principal Secretaries of State. And we do further direct, that before
entering upon the execution of the duties of his said office, the said
sheritf shall enter into a recognizance to us in the said Supreme Court
of Newfoundland in the sum of f5000, with two good and sufficient
sureties in the sum of f'2000 each, for the due and faithful performance
of the duties of such his office, and for the due and punctual payment
of all such sums of money as may by him or his lawful deputies be
levied or received by virtue of any process, rule, or order of the said
Supreme Court and Circuit Courts or any ofthem. And we do further
direct, that the said Sheriff shall, on the first Monday of each calendar
month, produce befare the Chief Judge or one of the Assistant Judges
aforesaid, a written account of all the money by him or by his lawful
deputies reccived during the calendar month last prcceding, and stating
the application thereof so far as the same may by him or them have
been applied; and also stating the exact balance of such monies then
remaining in the possession of himself or his said dcputies, so far as
the returns received from such deputies enabJe him to make out the said
account. And we do further order, that the said Chief Judge or Assist-




NEWFOUNDLAND-CHARTER OF JUSTICE. 499
ant Judges, as the case may be, shall cause the said account to be pub-
Iicly exhibited in the office of the Prothonotary 01' Registrar of the said
Supreme Court for the spaee of one calendar month next after the
same shall have been so rendered, and shall then cause the same to be
enrolled among the records of the said court. And we do further
order, direct, and appoint, that the said Sheriff and his successors shall
by themselves 01' their suffieicnt deputies, to be by them appointed and
duly authorized under their respective hands and seals, and for whom
he and they shall be responsible during his 01' their continuance in such
offiee, exeeute, and the said Sheriff by himself 01' his lawful deputies is
hereby authorized to execute, the writs, summonses, rules, orders, war-
rants, eommands, and process of the said Supreme Court and the said
Circuit Courts, and make returns of the same, together with the manner
of the execution thereof, to the Supreme Court and Circuit Courts re-
spectively; to receive and detain in prison all such persons as shall be
committed to the eustody of sueh Sheriff by the said Supreme Court
and Circuit Courts respectively, 01' by tite Chief Judge 01' Assistant
Judges 01' either of them, And we do further direct, order, and ap-
point, that whenever tite said Supreme Court 01' any of the said Cireuit
Courts shall direet 01' award any process against the said Sheriff, 01'
shall award any process in any cause, matter, 01' thing wherein the said
Sheriff, on account of his being related to the parties 01' any of them,
01' by reason of any good cause of challenge, which would be allowed
against any Sheriff in England, eannot 01' ought not by law to execute
the same, then and in every such case the said Supreme Court 01' the
said Circuit Court, as the case may be, shall name and appoint sorne
other fit person to execute and return the same; and the said pro-
cess shall be direeted to the person so to be named for that purpose,
and the cause of sueh special process shall be suggested and entered
on the records of the court issuing the ,same. Provided always and
we do hereby ordain and declare, that the said Suprerne Court and the
said Circuit Court shall respeetively fix eertain limits, beyond which
the said Sheriff shall not be compelled 01' compellable to go in person,
01' by his officers 01' deputies, for the execution of any process of the
said courts respectively; and upon oecasions where the process of any
of the said courts shall be to be execnted in any place 01' places beyond
the limits so to be fixed, we grant, ordain, and direct, that the said
Supreme Court 01' Circuit Courts respectively, as the case may be,
shall, upon motion, direct by what person 01' persons, and in what
manner, such process shall be executed, and the terms and condition
which the party at whose instance the same shall be issued shall enter
into, in order to prevent any improper use 01' abuse of the process of
the said courts; and the said Sheriff shall, and he is hereby required
to grant his speeial warrant 01' deputation to such person 01' persons as




430 NEWFOUNDLAND--CHARTER OF JUSTICE.
the court making any such order shall direct, for the execution oí such
process; and in that case we direet and declare, tbat the said Sberiff,
bis beirs, exeeutors, 01' administrators, shall not be responsible 01' liable
for any act to be done in 01' in any way respeeting tbe exeeution oí sueh
proeess, under and by virtue of sueh speeial warrant; and that any
person 01' persons being aggrieved under 01' by virtue of sueh speeial
warrant, shall and may seek their remedy under any seeurity wbich
may have been direeted to be taken upon tbe oeeasion, and whieh the
court issuing such proeess is hereby authorized to direet to be taken.
And it is our further will and pleasure, and we do hereby for us, our
heirs and successors, grant, ordain, establish, and appoint, that the said
Supreme Court shall grant Probates under the seal of the said eourt, of
the last wills and testaments of all 01' any of the inhabitants of the said
eolony and its dependeneies, and of all other persons who shall die and
leave personal effeets within the said eolony and its dependeneies, and
to eommit letters of administratlon under the seal of the said Supreme
Court, of the goods, ehattels, eredits, and all other effeets wbatsoever
of tbe persons aforesaid who shall die intestare, 01' who shall not have
named an exeeutor resident within the said eolony and its depend-
eneies, 01' where the exeeutor being duly cited shall not appear and sue
forth such probate, annexing the will to the said letters of administra-
tion when sueh persons shall have left a will, and to sequester the
goods, chattels, eredits, and other effects whatsoever of such persons so
dying, in cases allowed by law, as the same is and may be now used in
the dioeese of London; and to demand, require, take, hear, examine,
and allow, and if oceasion require, to disallow and rejeet, the accounts
of tbem in sueh manner and form as is now used 01' may be used in the
said dioeese of London, and to do all other things whatsoever needful and:
neeessary in that behalf. Provided always, and we do hereby authorize
and require the said Supreme Court in sueh cases as aforesaid, where let-
ters ofadministration shall be eommitted with the will annexed for want of
an exeeutor appearing in due time to sue forth the probate, to reserve in
sueh letters of administration full power and authority to revoke the same,
and to grant probate oí the said will to such exeeutor whenever he shall
duly appear and sue forth the same, And we do hereby further authorize
and require the said Supreme Court ofNewfoundland to grant and commit
sueh letters of administration lo any one 01' more of the lawful next of kin
of such person so dying as aforesaid, being then resident within the juris-
diction of the said Supreme Court, and being of the age of twenty-one
yeárs. Provided always, that probates of wills and letters of admi-
nistration to be granted by the said Supreme Court shall be limited to
such money, goods, ehattels, and effeets as the deeeased person shall be
entitled to within the said colony and its dependencies. And we do
hereby further enjoin and require that every person to whom sueh




NEWFOUNDLAND-CHARTER OF JU8TICE. 431
Ietters of administration shall be committed shall before the granting
thereof give sufficient security, by bond to be entered into, to us, our
heirs, and successors, for the payment of a competent sum of money,
with one, two, or more able sureties, respect being had in the snm
therein to be contained and in the ability of the sureties to the value of
the estates, credits, and effects of the deceased, which bond shall be
deposited in the said Supreme Court among the records thereof and
there safely kept, and a copy thereof shall 'be also recorded among the
proceedings of the said Supreme Court, and the condition of the said
bond shall be to the following effect-" That if the aboye bounden ad-
ministrator of the goods, chattels, and effects of the deceased do make
or cause to be made a true and perfect inventory of all and singular the
goods, credits, and effects of the said deceased which have or shall come
to the hands, pessession, or knowledge of him the said administrator, or
to the hands or possession of any other person or persons for him, and
the same so made do exhibit or cause to be exhibited into the said Su-
preme Court of Newfoundland at 01' before a day therein to be specified,
and the same goods, chattels, credits, and effects, and all other the
goods, chattels, credits, and effects of the deceased at the time of his
death or which at any time afterwards shall come to the hands or pos-
session of such administrator or to the hands 01' possession of any other
person or persons for him, sball well and truly administer according to
law, and fnrther shall make or canse to be made a true and just account
of his said administration at or before a time therein to be specified, and
afterwards from time to time, as he, she or they shaU be lawfully re.
quired, and all the rest and residue of the said goods, chattels, credits,
and effects which shall be found from time to time remaining upon the
said administration accounts, the same being first examined and allowed
of by the said Supreme Court of Newfoundland, shall and do pay and dis-
pose of in a due course of administration er in snch manner as the said
court shaU direct, then tbis obligation to be void and of none effect, or
else to be and remain in fuU force and virtue." And in case it shall be
necessary to put the said bond in suit for the sake of obtaining the
effect thereof for the benefit of such person or persons as shall appear
to the said Court to be interested therein, such person or persons
from time to time giving satisfactory security for paying all such costs
as shall arise from tbe said suit or any part thereof, such person or per-
sons sball by order of the said Supreme Court be allowed to sue the
same in tbe name of tbe Attorney-General for the time being of the said
colony, and the said bond shaU not be sued in any otber manner. And
we do hereby authorize and empower the said Supreme Court to order
that the said bond shall be put in suit in the name of the said Attor-
ney-General. And we further will, order, and require that the said




432 NEWFOU~DLAND-CHARTER OF JUSTICE.
Supreme Court shall fix certain periods when all persons to whom pro-
bates of wills and letters of administration shall be granted by the said
Supreme Court shall, from time to time, until the effects ofthe deceased
person shall he fully administered, pass their accounts relating thereto
befare the said court, and in case the effectsof the deceased shall not be
fuUy administered within the time for that purpose to he fixed by the
said court, then, 01' at any earlier time, if the said Supreme Court shall
see fit so to direct, the person 01' persons to whom such probate 01' admi-
nistration shaU be granted, shall pay, deposit, and dispose of the balance
of money belonging to the estate of the deceased then in his, 01' her, 01'
their hands, and all money which shall afterwards come into his, her, 01'
their hands, and also all precious stones, jewels, bonds, bilis, and secu-
rities belonging to the estate of the deceased, in such manner and unto
such persons as the said Supreme Court shaU direct for safe custody.
And we require that the said Supreme Court shall from time to time
make such order as shall be"just for the due administration of such
assets, and for the payment 01' remittance thereof 01' any part thereof,
as occasion shall require, to 01' for the use of any person 01' persons,
whether resident 01' not resident in the said colony and its dependencies,
who may be entitled thereto, 01' any part thereof, as creditors, legatees, 01'
next of kin, 01' hy any other right 01' title whatsoever. And we do
hereby, in exercise and in pursuance of the powers in us by the said
Act of Parliament in that behalf vested, authorize and empower the said
Supreme Court of Newfoundland, under such limitations as hereinafter
mentioned, to make and prescribe such rules and orders as may be ex-
pedient touching and concerning the forms and manner of proceeding
in the said Supreme Court and Circuit Courts respectively, and the
practice and pleadings upon aU indictments, informations, actions, suits,
and other matters to be therein brought; and touching and concerning
the appointing of commissioners to take hail and examine witnesses,
the taking examination of witnesses de bene esse, and allowing the same
as evidence; the granting of probates of wills and letters of administra-
tion; the proceedings of the sheritr and his deputies and other ministerial
officers; the summoning of assessors for the trial of crimes and misde-
meanors in the said Circuit Courts, the process of the said courts, and
the mode of executing the same; the impannelling of juries; the admis-
sion of barristers, attornies and solicitors; the fees, poundage, 01' per-
quisites to be lawfully demanded by any officer, attorney, 01' solicitor in
the said courts respectively; and other matters and things whatsoever
touching the practice of the said courts as may be necessary for the
proper conduct of business therein, and such rules and orders from
time to time to alter, amend, 01' revoke, as may be requisite : Provided
always, that no such rules 01' orders be in auywise repugnant to the




NEWFOUNDLAND-CHARTER OF JUSTICE. 433
said Act of Parliament or this our charter : Provided further, that al! such
rules and orders be promulgated in the most public and authentic man-
ner in our said colony for three calendar months at the least before the
same shall operate and take effect, and that the same be by the first
convenient opportunity transmitted through the Governor or acting
Governor of our said colony to us, our heirs, and successors, for the
signification of our or their pleasure respecting the al!owance or disal-
lowance thereof: And we do hereby direct, ordain, and appoint that
any person or persons feeling aggrieved by any judgment,decree, order,
or sentence of the said Supreme Court, may appeal to us, our heirs, and
successors, in our or their Privy Council, in such manner, within such
time, and under and subject to such rules, regulations, and limitations
as are hereinafter mentioned, that is to say, in case any such judgment,
decree, order, or sentence of the said Suprema Court shall be given or
pronounced for or in respect of any sum or matter at issue aboye the
amount or value of JZ500 sterling, or in case such judgment, decree,
order, or sentence shall involve, directly or indirectly, any claim, de-
mand, or question of or respecting property or any civil right, amount-
ing to or of the value of :f500 sterling, the person or persons feeling
aggrieved by any such judgment, decree, order, or sentence of the said
Supreme Court may, within fourteen days next after the same shall have
been pronounced, made, or given, apply to the said Supreme Court, by
petition, for leave to appeal therefrom to us, our heirs, and successors,
in our 01' their Privy Council, and in case such leave to appeal shall be
prayed by the party or parties who is or are directed to payany sum of
money or perform any duty, the said Supreme Court shall be and is hereby
empowered either to direct that the judgment, decree, order, or sentence
appealed from shall be carried into execution, or that the execution
thereof shall be suspended pending the said appeal, as to the said court
may appear to be most consistent with real and substantial justice; and
in case the said Supreme Court shall direct such judgment, decree,
order, or sentence to be carried into execution, the person or persons in
whose favour the same shall be given shall, before the execution
thereof, enter into good and sufficient security, to be approved by the
said Supreme Court, for the due performance of such judgment or
order, as we, our heirs, and successors shall think lit to make there-
upon; 01' in case the said Supreme Court shall direct the execution of
any such judgment, decree, order, or sentence to be suspended pending
the appeal, the person or pel'sons against whom the same shall have
been given shall, in like manner, and before any order for the sllspen-
sion of any such execution is made, enter into good and sufficient se-
curity to the said Supreme Court for the due performance of such
judgment 01' order as we, our heirs, Orsuccessors.shall think fit to make


FF




434, NEWFOUNDLAND-CHARTER OF JUSTICE.
thereupon; and in all cases we will and require that security shall also be
given by the party 01' parties appellant, to the satisfaction of the said
Supreme Court, for the prosecution of the appeal and for the payment
of all such costs as may be awarded by us, our heirs, and successors to
the party 01' parties respondent; and if such last-mentioned security
shall be entered into three months from the date of such petition for
leave to appeal, then and not otherwise the said Supreme Court shall
allow the appeal, and the party 01' parties appellant shall be at liberty
to prefer and prosecute his, her, 01' their appeal to us, our heirs, and
successors, in our 01' their Privy Council, in such manner and form and
under such rules as are observed in appeals made to us from our plan-
tations 01' colonies: And we do hereby reserve to ourself, our heirs
and successors, in our 01' their Privy Council, full power aud authority
upon the humble petition, at any time, of any person 01' persona feeling
themselves aggrieved by any judgment, decree, order, or sentence of the
said Supreme Court, lo refuse 01' admit his, her, 01' their appeal therc-
from, upon such terms and upon such limitations, restrictions, and regu-
lations, as we 01' they shalI think lit, and lo reform, correct, 01' vary such
judgment, decree, order, 01' sentence, as to us 01' them shall seem meet :
And it is our further wiII and pleasure that in all cases of appeal
allowed by the said Suprema Court, 01' by US, our heirs, and successors,
the said Supreme Court shall certify and transmit to us, our heirs, 01'
suecessors, in our or their Privy Council, a true and exact copy of all
evidence, proceedings, judgments, decrees, sentences, and orders, had
01' made in such causes appealed, so far as the same have related to the
matter of appeal, such copies being under the seal of the said court:
And we do further direct and ordain that the said Supreme Court of
Newfoundland shall in all cases of appeal to us, our heirs, and succes-
sors, conform to and execute 01' cause to be executed such judgments
and orders as we, our heirs, and successors shall think lit to make in
the premises, in such manner as any original judgment, sentence,
decree, decretal order, 01' other arder 01' rule of the said Supreme Court
of Newfoundland could 01' might have been executed: And we do
hereby strictly charge and command all Govemors, Commanders, Ma-
gistrates, Ministers, civil and military, and all our liege subjects within
and belonging to the said colony, that in the execution of the several
powers, jurisdictions, and authorities, hereby granted, made, given, 01'
created, they be aiding and assisting and ohedient in all things, as they
will answer the contrary at their peril: Provided always, that nothing
in these presents contained, 01' any act which shall be done under the
authority thereof, shall extend 01' be construed to extend to prevent us,
our heirs, and snccessors, as far as we lawfulIy may, from repealing
these presenta or any part thereof, 01' from making such further 01' other




NEWFOUNDLAND-cHARTER OF JUSTICE. 435
provisión, by letters-patent, for the administration of justice, civil and
criminal, within the said colony and the places now 01' at any time
hereafter to be annexed thereto, as to US, our heirs, and snccessors shall
seem fit, in as fn1l and ample a manner as if these presents had not beeu
made, these presents 01' any thing herein contained to the contrary noto
withstanding. In witness, lItc.


Witness, lItc.
Patent dated 19th September, 1825.


NEWFOUNDLAND.-ROYAL INSTRUCTIONS.


-
Instructions toour trusty andwell-belooed Sir Thomas John Cockrane,


Knight, our Gotemor and Commonder-in-Chief of 0111' [sland of
Newfollndland, 01' in his absence to the Lieuienant-Governor 01'
qflicer administering the gooernment qfour said Island for the time
being, Gicen at 0/11' Court at Sto James's, the 26th doy ifJuly,
1832, in the third year ifour reign.
1. With these our instruetions you will reeeive our commrssron


under our great seal of the United Kingdom 01' Great Britain and Ireland
constituting you our Governor and Commander-in-Chief in and over
our said island of Newfonndland and ita dependeneies. You are
therefore with a1l eonvenient speed to assume and enter upon the
exeeution of the trust we have reposed in you. And you are forthwith
to ca1l togcthcr thc fo1lowing persons, whom we do hereby appoint to be
members 01' our Council in onr said island, any three 01' whorn to be a
quornm: viz, The chief justice for the time being of our said island ;
the chief officer in command 01' our land forces for the time being in
our said island next after our Governor thereof for the time being ; the
attorney-gcneral for the time being 01' our said island; the col1ector
or other ehief offieer of custorns 1'01' the time being 01' our said island ;
tbe colonial seeretary for the time being of our said island, and Wil1iam
Haly, Esquire.


2. And you are with all due and usual solemnity to cause our said
commission, constituting yon our Governor and Commander-in-Chief
as aforesaid, to be read and pnblished at the first meeting of our said
Council, and shall then take, and also administer to each 01' the
mernbers thereof, the several oaths therein required.


3. You sball adrninister 01' cause to be administered Ihe several oaths
mentioned in our said commission to a1l judges, justices and other


FF2




436 NEWFOUNDLAND-ROYAL INSTRUCTIONS.
persoos who hold any place of trust or profit in our said island, without
the doing of which you are not to admit any person whatsoever into
any public office, nor suffer those who may have already been admitted
to continue therein.


4. You are to communicate forthwith such of these our instructions to
our said Council, wherein their advice and consent are mentioned to be
requisite, and likewise all such others from time to time as you shall
find convenient for our service to be imparted to them.


5. You are to permit the members of our said Council to have and
enjoy freedom of debate, and vote in all affairs of public conccrn that
may be submitted to their consideration in Counci!.


6. And that we may be always informed of the names and cha-
racters of persons fit to supply the vacancies in our said Council, you
are from time to time, whenever any vacancy shall happen therein,
forthwith to transmit unto us, through one of our principal Secretaries of
State, the names of three per~ons, inhabitants of the said island, whom
you shall esteem the best qualifled for the trust.


7. And whereas by our commission you are empowered in case of
the death or absence of any of the members of our said Council to fill
up the vacancies therein to the number of three, and no more, you are
therefore from time to time to send to us, through one of our principal
secretaries of state, the names and qualifications of any members by
you put into our said Council by the first opportunity after so doing.


8. And in the choice and nomination- of the members of our said
Council as also of the judges, justices, and other officers, you are
always to take care that they be men of good liíe, well affected to
our government, of good estates, and abilities suitable to their employ-
ments.


9. You are neither to augment nor diminish the number of the
members of our said Council as already established, nor to suspend any
of them without good and sufficient cause, nor without the consent of
the majority of the said Council, signified in Couneil after due exami-
nation of the charge against such Councillor, and his answer thereunto ;
and in case of the suspension of any of them you are to cause your
reasons for so doing, together with the charges and proofs against such
Coimcillor, and his answer thereunto, to be duly entered upon the
Council-book, and forthwith to transmit copies to us, through one of
our principal Secretaries of State. Nevertheless, if it should happen that
you should have reasons for suspending any ofthe members of our said
Council, not fit to be communicated to our said Council, you may in
that case suspend such member without their consent. But you are
thereupon immediately to send to us, through one of our principal
Secretaries of State, an account of your proceedings therein, together




NEWFOUNDLAND-ROYÁL lNSTRUCTIONS. 437
with your reasons al large for such suspensión, and also your reasons
for not communicating the same to our Council.


10. And whereas effectual care ought to be taken to oblige the
members of our said Council to a due attendance therein, and thereby
to prevent the inconveniences that may happen from the want of a
quorum to transact business as occasion may require, it is our wil! and
pleasure that if any of the members of our said Council shall hereafter
absent themselves from the said island, and continue absent aboye
the space of six months together without leave from you or our Como
mander-in-Chisf for the time being first obtained under your 01' his
hand 01' seal, 01' shall remain abseut for the space of two years suecas-
sively without leave given them under our royal sign manual and
signet, their place or places in the said Council shall immediately
thereupon become void; and that if any of the members of our said
Council, then residing within our said island, shall hereafter absent
themselvss when duly summoned without a sufficient cause, and shall
persist in such absence after being thereof admonished by you, you
suspend the said Councillors so absenting themselves till our furtber
will and pleasure therein be known, giving immediate notice thereof to
us, through one of our principal Secretaries of State: and we do
hereby wiIl and require that our royal pleasure be signified to the
members of our said Council and entered in the Council-book as a
standing rule.


11. And whereas by our aforesaid commission you are authorized
and empowered to summon and caIl General Assemblies of the free-
holders and householders within our said island, in such manner and
form, and according to such powers, instructions, and authorities as are
granted 01' appointed by these our instructions in that behalf, you are
therefore, for the purpose of electing the members of such Assemblies,
herebyauthorized to issue proclamations dividing our said island into
districts 01' counties, towns 01' townships.vand appointing the limits
thereof, and declaring and appointing the number of representatives to
be chosen by each of such districts 01' counties, towns 01' townships
respectively, and from time to time to nominate and appoint proper
persons to e.xecute the office of returning officer in each of the said
districts 01' counties, towns 01' townships ;and you are, 50 soon as you
shall see expedient, to issue writs in our name, directed to the proper
officers in each district 01' county, town 01' township, directing them to
summon the freeholders and householders thereof, to proceed to the
election of persons to represent them in the General Assembly according
to the regulations and directions to be signified in the proclamation to
be issued by you as aforesaid,


12. You are to observe in the passing of all laws, that the style of
enacting the same be by the Governor, Council, and Assembly,




4..38 NEWFOUNDLAND-ROYAL INSTlWCTIONS.
13. And we do hereby require and command that you do not, on any


pretence whatever, give your assent to any law or laws to be passed by
which the number of the AssembJy shall be enlarged 01' diminished, the
duration ascertained, the qualifications of the electors or the elected
fixed or altered, or by which any regulations shall be established with
respect thereto, until you shall have first transmitted unto us, through
one of our principal Secretarias of State, the draft of such bill or bilis,
and shall have received our royal pleasure therenpon, unless you take
care in the passing such bill or bilis that a c1anse or clauses be in-
serted therein suspending and deferring the executíon thereof until OUl"
wiH and pleasure shall be known thereupon.


14. And you shall not re-enact any law to which the assent of us or
our royal predecessors has once been refused, without express leave for
that purpose first obtained from us, upon a full represenlation by you,
to be made to us through one of our principal Secretaries of State, of
the reason and necessity for re-enacting such law,


15. And it is our express will and pIeasure, that no law for con-
stituting any court or courts of judicature, or for establishing the
militia, shall be a temporary law; and that no law for granting unto us
any sum or sums of money by duties of impost, tonnage, or excise, be
made to continue for less than one whole year; as also that no other
laws whatsoever be made to continue for less than two years, except
only in cases where it may be nece8sary for sorne unforeseen emergency
to make provision by law for a service in its nature temporary and
contingento


16. You are also, as mueh as possible, to observe in the passing of
all laws, that each different matter be provided for by a different law,
without intermixing in one and the same act sueh things as have no
proper relation to each other; aud you are more especially lo take care
that no clause or c1auses be inserted in, or annexed to, any aet which
shall be foreign to what the title of such respective act imports ; and that
no perpetual clause be part of any temporary law; and that no act
whatever be suspended, altered, continued, revived, or repealed by
general words, but tbat the title and date of such act so suspended,
altered, continued, revived, or repealed, be particularly mentioned and
expressed in the enaeting parto


17. And you are particularly enjoined not to pass any law, or do any
act, by grant, deed, conveyance, or otherwise, wbereby our revenue may
be lessened or impaired without our especíalleave or command thereon.


18. It is our wil\ and pleasure that you do not give your assent to
any bill or bills for raising money by the institution of any public or
prívate lotteries whatsoever until you shall have first transmitted unto




NEWFOUNDLAND-ROYAL INSTRUCTIONS. 439
us, through one of our principal Secretaries of State, a draft or drafts
of such bill or bilis, and shall have reeeived our directions thereupon.


19. It is our will and pleasure that you do not, on any pretence
whatever, give your assent to, or pass any bill or bills in our island
under your government, by which the lands, tenements, goods, chattels,
rights and credits of persons who have never resided within our said
island, shall be liable to be seized or taken in execution for the re-
covery of debts due from such persons, otherwise than is allowed by
law in cases of a like nature within our realm of England, unti} you
shall have first transmitted unto us, through one of our prindpal
Secretaries of State, the draft of such bill or bilis, and shaU have
received our royal pleasure thereupon, unless you take care, in the
passing of such bill or bilis, that a clause or clauses be inserted therein,
suspending and deferring the execution thereof until OUT royal will and
pleasure shall be known thereupon.


20. It is our further will and pleasure tbat you do not, upon any
pretence whatsoever, give your assent to any bill or bills that may have
been or shall hereafter be passed by the Council and Assembly of the
island under your government for the naturalization of aliens, nor for
the divorce of persons joined together in holy matrimony, nor for
establishing a title in any person to lands, tenements, and real estates
in our said island, originally granted to or purchased by aliens antece-
dent to naturalization.


21. Whereas great mischiefs have arisen by the frequent passing of
bilis of an unusual and extraordinary nature and importance in the
plantations, which bilis remain in force there from the time of enacting
until our pleasure be siguified to the contrary, we do hereby will and
require you not to pass or give your assent to any bill or bilis passed in
the Assembly of an unusual and extraordinary nature and importance,
whereby our prerogative or the property of our subjects may be
prejudiced, nor to any bill or bills whereby the trade or shipping of this
kingdom shall be in anywise affected, until you shall have first trans-
mitted Unto US, through one of our principal Secretaries of State, a
draft of sueh bill or bilis, and shall have received our royal pleasure
thereupon, unless yon take care in the passing any such bills as afore-
mentioned that there be a elause inserted therein, suspending and
deferring the execution thereof until our pleasure shall be known
concerning the same,


22. You are also to take care that no prívate act be passed, whereby
the property of any prívate person may be affected, in which there is
not a saving of the rights of us, our heirs and successors, all bodies
politic and corporate, and of all other, exeept such as are mentioned in
the said act, and those claiming by, frorn, and under them; and




440 NEWFOUNDLAND-ROYAL INSTRUCTIONS.
further, you shall take care that no such prívate act be passed withouta
clause suspending the execution thereof until the sarne shall have
received our royal approbation, It is likewise OUT wiII and pleasure
that you do not give your assent to any private act until proof be made
before you in Council, and entered in the Council-book, that public
notification was made, of the parties' intention to apply for such an act,
in the several parish churches where the premises in question lie, for
three Sundays at least successively, before any such act shall be brougbt
into the Assembly, and that a certificate, under your hand, be trans-
mitted with, and annexed to every such private act, signifying that the
same has passed through al! the forms aboye mentioned.


23. You are to take care that in all acts 01' orders to be passed within
our said island, in any case for levying money 01' imposing fines and
penalties, express mention be made that the same is granted 01'
reserved to us, our heirs and successors, for the public uses of the said
island, and the support of the governmeut thereof, as by the said act 01'
order shall be directed.


24. You are not to suffer any public money whatsoever, whether it be
appropriated lo any particular service 01' ~t by the aet granting the
same, to be issued 01' disposed of otherwise than'by warrant under your
hand, hy and with the consent of the said Counci!. But the Assembly
may nevertheless be permitted from time to time to view and examine
the accounts of money 01' value of money disposed of by virtue of laws
made by tbem, as there shall be occasion.


25. You are not to permit any clause whatsoever to be inserted in
any law for levying of money, 01' the value of money, whereby the same
shall not be made liable to be accounted for unto us, here in this
kingdom, and to our Commissioners of our Treasury, 01' our High
Treasurer for the time being; and we do particularly require and
enjoin you, upon pain of our highest displeasure, to take care that fair
books of accounts of all receipts and payments of al! such money be
duly kept, and copies thereof be transmitted to our Commissioners of
our Treasury, 01' to our High Treasurer for the time being, and in which
books shall be specified every particular sum raised 01' disposed of,
together with the names of the persons to whom any payment shall be
made, to the end we may be satisfied of the right and due application
of tbe revenue ofour said island, with the probability of the increase and
diminution of it, under every head and article thereof.


26. It is our will and pleasure tbat you do in all things conform
yourself to the provisions contained in an Act of Parliament passed in
the fourth year of the reign of his late Majesty King George tbe Third,
intituled, "An Act to prevent papel' bilis of credit hereafter to be
issued in any of His Majesty's colonies 01' plantations in América




NEWFOUNDLAND-ROYAL INSTRUCTIONS. 141
from being declared to be a legal tender in payment of moncy, and to
prevent the legal tender of such bilis as are now subsisting from
being prolonged beyond the periods limited for recalling in and
siuking the same;" and also of an act passed in the thirteenth year
of the reign of his late Majesty to explain and amend the above-recited
act passed in the fourth year of his reign a.~ aforesaid; and you are not
to give your assent to, 01' pass any act whereby bilis of credit may be
struck 01' issued in lieu of money, 01' for payment of money, either to
you, our Governor, 01' to any person whatsoever, unless a clause be
inserted in such act, declaring that the same shall not take effect until
the said act shall have been approved and eonfirmed by us, our heirs
01' successors,


27. You are to transmit an authenticated and separata copy ofevery
law, statute 01' ordinance that at any time hereafter shall be made 01'
enacted within the island under your government, under the public seal,
unto us, through one of our principal Secretaries of State, within three
months, 01' sooner, after their being enacted, upon pain of our highest
displeasure, and ofthe forfeiture of that year's salary wherein you shall
omit to send over the said laws, statutes and ordinances as aforesaid,
within the time above-mentioned, as also of such other penalty as we
shall please to inflict: but if it shall happen that no shipping shall
come from our said island within three months after the making ~uch
laws, statutes, and ordinances, the same are to be transmitted by the
next conveyance after the making thereof, whenever it may happen, for
our approbation 01' disallowance of the same.


28. And it is our further wiII and pleasure that the copies and
duplicares of all acts that shall be transmitted as aforesaid be fairly
abstracted in the margergs, and there be inserted the several dates 01'
respective times when the same passed the Council and Assembly, and
recei ved your assent; and you are to be as particular as may be in
your observations, to be sent to us through one of our principal
Secretaries of State, upon every act; that is to say, whether the same is
productive of a new law, declaratory of a former law, 01' does repeal a
law then before in being, and you are likewise to send to us, through
oue of our principal Secretaries of State, the reasons for the passing of
such laws, unless the same do fully appear in the preambles of the said
aets.


29. You are to require the Secretary of the island under your
government, 01' his deputy for the time being, to furnish you with
transcripts of all such acts and public orders as shall be made from time
to time, together with copies of the journals of the Council, and that all
such copies be fairly abstraeted in the margents, to the end the same
may be transmitted to us, through one of our principal Secretaries of




442 NEWFOUNDLAND-ROYAL INSTRUCTIONS.
State, which he is duly lo perform upon pain of ineurring the for-
feiture of his offiee.


30. y ou are also lo require from the elerk of the Assembly of the said
island, or other proper offieer, transcripts of al! the journals and other
proceedings of the said Assembly, and that al! such transcripts be
fairly abstracted in the margents, to the end the same may in like
manrrer be transmitted as aforesaid.


31. Yon shall not appoint any person lo be a judge or justice I)f the
peaee without the adviee and eonsent of the majority of the Conncil of
our said island, signified in Couneil. And it is our further will and
pleasure tbat all eommissions to be granted by you to any person or
persons to be judges, justices of the peace, or other necessary officers,
be granted during pleasure only.


32. You shall not suspend any of the judges, justices, or other
offieers or minísters, without good and sufficíent cause, which you shall
signify in the fullest and most liistinct manner to us, through one of
our principal Seeretaries of State.


33. It being of the greatest importanee lo our service, and to the
welfare of our snbjects, that justice be everywhere speedily and duly
administered, and that all disorders, delays, and other undue practices
in the administration thereof, be effeetually prevented; we do partí-
cularly require you to take especial care that in all courts where you are
authorized to preside, justice be impartially administered; and that in
all other courts established within our said island, all judges and other
persons therein coneerned do likewise perform their several duties
without ~ny delay or partiality. You shall not ereet anyeourt or
offiee of judicatura not before ereeted or established, nor dissolve any
court or offlce already erected or established, without our especial
arder.


34. You are, for the better adminislration of justice, to endeavour
to gel a law passed in our said island, wherein shall be set the value
of men's estates, either in goods or lands, under which tbey shall uot
hecapable of serving as jurors.


35. You are to take care fhat allwrits be issued in our name through-
out our said island under your government.


36. Whereas, in pursnance of an act passed in the fifth year of the
reign of his late Majesty, King George the Fourth, intituled, "An A:et
for the better adrninistratiou of justiee in N ewfoundland, and for other
purposes," by our chárter or letters patent, issued under the great seal
of the United Kingdom of Great Britain and Ireland, a supreme court
of jurisdietion, called the "Supreme COUTt of Newfoundland," was
er/!Cted and established in our said island, with certain powers and
authorities, and under cerlain regulatiens therein specifíed, you are




NEWFOUNDLAND-ROYAL INSTRUCTIONS. 443
hereby requircd to take care that the same be duly complied with, and
put in execution.


37. You are, with the advice and consent of our Council, to take
especial care to regulate all salaries and fees belonging to places, 01'
paid upon emergencies, that they be within the bounds of moderation,
and that no extortion be made on any occasion whatsoever, as also that
tables of all fees be publicly hung up in all places where such fees are
to be paid; and you are to transmit copies of aU such tablas of fees to
us, through one of our principal Secretaries oí State,


38. You shall not by colour of any power 01' authority, hereby 01'
otherwise granted 01' mentioned to be granted to you, take upon yoo to
give, grant, or dispose of any office 01' place within our said island,
which now is or shall be granted uuder the great seal of this kingdom,
01' to which any person is 01' shall be appointed by warrant UOOei" our
sign manual and signet, any further than yon may, upon the vacancy of
any such office 01' place, 01' upon the suspension of any such officer by
you, put in any lit person to officiate in the interim till you shall have
represented the matter to us, through one of our principal Secretaries oí
State, which you are to do by the first opportunity, and have received
our further directions therein, .


39. You are to transmit unto us, through one of our principal
Secretaries of State, with all convenient speed, a particular account oí
al! establishments of jurisdictions, courts, offices and officers, powers,
authorities, fees, and privileges, granted and seuled, 01' which sball be
granted and settled within our said island , as likewise un accouat of all
the expenses attending the establishment of the said courts, and of such
funds as are settled and appropriated to discharge the same.


40. It is our express will and pieasure that you be at all times aiding
and assisting unto the officers appointed for the managing, levyiug,
collecting and receiving public revenues, and such daties and re-
venues as are 01' shall hereafter be Iaid and imposed within ;your
governmeut, and the seizures, forfeitures, and arrears which shall accrue
and grow due by reason thereof.


41. And whereas complaints have beea made by the officers oí out
customs in our plantations in America that they have beea frequentIy
obliged te serve on juries, and personally to appear in arms wheasoever
the militia is drawn out, and thereby are much hindered in the execution
of their employments, our will and pleasure is that yoa take effectual
care, and give the necessary directions that the several officersof our
customs be exeused and exempted from serving 011 any juries, 01'
personally appearing in arms in the militia, unless in case of absolute
necessity, or serving any parochial offices which may, hinder them in
the executien oí tbeir duties,




444· NEWFOUNDLAND-ROY AL INSTRUCTIONS.
42. And in case of the vacancy of the collector, 01' any of our officers


of the customs by death, removal, 01' otherwise, and in order that there
may be no delay given on oeeasion of such vacancy to the masters of
ships 01' merehants in their despatch, you are hereby empowered, subject
to such instructions as you shall receive from our Commissioners of our
Treasury, 01' our High Treasurer, 01' from the Commissioners of our
Customs for the time being in this behalf, to appoint other persons duly
qualified to execute such offices, until further direetions shall be reeeived
from our Commissioners of our Treasury, 01' our High Treasurer, to
whom you are to give notice of sueh appointments by the first oppor-
tunity, taking care that you do not, under pretence of this instruction,
interfere with the powers and authorities given to our said Collector by
our Commissioners of our Treasury, 01' our High Treasurer, 01' by the
Commissioners of our customs.


43. y ou shall not remit any fines or forfeitures whatever aboye the sum
of .í5o, nor dispose of any forfeitures whatsoever until upon signifying
unto our Commissioners of our Treasury, 01' our High Treasurer for tbe
time being, the nature of the offence and the occasion of such fines and
forfeitures, with the particular sums 01' valué thereof(which you are to do
with a1l speed,) you shall have received our directions therein, but
you may in the mean time suspend the payment of the said fines and
forfeitures,


44. It is our will and pleasure that you do not dispose of forfeitures
01' escheats to any persons until the provost marshal 01' other proper
officer have made inquiries by a jury upon their oaths into tbe true
value thereof, nor until you shall have transmitted to our Commis-
sioners of 'our Treasury, 01' to our High Treasurer for the time being, a
particular account of sueh forfeitures and escheats and the value
thereof, and shall have received our directions thereupou, and you are
to take care that the produce of the said forfeitures and escheats, in
case we shall think proper to give you direction to dispose of the same,
be duly paid to the receiver of our casual revenue; and that a full
account thereof be transmitted to our Commissioners of our Treasury,
01' to our High Treasurer for the time being, with the names of tbe
persons to whom disposed of,


45. Whereas you will receive from our Commissioners for executing
the offiee of High Admiral a commission constituting you Vice-Admiral
of our said island, you are hereby required and directed carefully to put
in execution the several powers thereby granted to you.


46. And whereas commissions have been granted in our colonies and
plantations for trying pirates in those parts, pursuant lo tbe acts for tbe
more effectual suppressson of piracy, our will and pleausure is, tbat in
a11 matters relating to pirates you govern yourself according to the




NEWFOUNDLAND-ROYAL INSTRUCTIONS. 445
intent of the acts before mentioned, and any commission you may
receive in reference thereto.


47. And whereas there have been great irregularities in the manner
of granting commissions to private ships of war, you are to govern
yourself, whenever there shall be occasion, according to the cornmission
and instructions granted in this kingdom: but you are not to grant
commisssions of marque 01' reprisal against any prince 01' state 01' their
subjects in amity with us to any person whatsoever without OUl' special
command,


48. Whereas we have thought it necessary for our service to con-
stitute and appoint a Receiver-General of our rights and perquisites of
the Admiralty, it is therefore our will and pleasure that you be aiding
and assisting to the said Receiver-General, his deputyor deputies, in the
execution of the said office of Receiver-General; and we do hereby
enjoin and require you to make up your accounts with hím, his
deputy 01' deputies, of such rights of Admiralty (eJfects of piratea
included) as you 01' your officers have received, 01' shall 01' may receive
for the future, and to pay over to the said receiver. general, his deputy 01'
deputies, for our use, all sueh sum 01' sums of money as shall appear
upon the foot of such accounts to be and remain in your hands, 01' in
thehands of any of your officers: And whereas our said Receiver-General
is directed, in case the parties chargeable with any part of such our
revenue refuse, neglect, 01' delay payment thereof, by himself 01'
sufficient deputy, to apply in our name to our Governors, Judges,
Attorney-general 01' any other our officers 01' magistrates, to be aiding
01' assisting to him in recovering the same, it is therefore our will and
pleasure that you, our Governor,our J udges, our Attorney-general, and
al! other officers whom it may concern, do use alllawful authority for
the recovering and levying thereof.


49. And whereas by letters patent under the Great Seal of our United
Kingdom of Great Britain and Ireland, bearing date at Westminster the
10th day of .May, 1825, the island of Newfoundland was constituted to
be part of the see of the Bishop of Nova Scotia, and the said bishop was
thereby duly authorized to exereise jurisdiction, spiritual and ecclesí-
astical, in the said colonies, it is our will and pleasure that in the
administration of the government of our said island you should be
aiding and assisting to the said bishop, and to his commissary 01'
commissaries, in the execution of their charge, and the exercise of such
ecclesiastical jurisdiction, excepting only the granting licenses for
marriages and probates of wills.


50. We do enjoin and require that you do take especial care that
Ahnighty God be devoutly and truly served throughout your govern-
ment, the book of cornmon prayer, as by law established, read each




446 N EWFOUND LAND-ROYAL INSTRUCTIONS.
Sunday and holiday, and the blessed Sacrament administered according
to the rites of the Church of England. You shall be careful that all
orthodox churches already built there be well and orderly kept, and that
more be built, as our island shall, by God's blessing, be improved.
And that besides a competent maintenance to be assigned to the
minister of each orthodox church, a convenient house be built at the
common charge for each minister, and a competent portion of land for
a glebe be allotted to him, And you are to take care that the parishes
be so limited and settled as you sha1l find most convenient for the
accomplishing this good work, and in a1l matters relating to the
celebration of di vine worship, the erection and repair of churches, the
maintenance of ministers, and the settlement of parishes throughout
your government, you are to advise with the right reverend father in
God the Bishop of Nova Scotia for the time being.


51. Upon the vacancy of any ecclesiastical benefice in our said
island, you will present to the sai~ Bishop of Nova Scotia for the time
being, for institution to such vacant benefice, any c1erk in holy orders
of the United Church of England and Ireland, who shall have been
actually resideut within the said diocese, and ofliciating there as a
clerk in holy orders, for six calendar months at the least next before such
benefice shall have bccome vacant, whom the said bishop may certify to
you to be a fit and proper person to fill such vacancy, and to be a person
of good life and eonversation, and conformable to the doctrine and
discipline of the said United Church. Bnt if at the time of any such
vacancy occurring there shall not be resident within the said diocese
any clerk in holy orders of the said Uuited Church who shall have been
resident and ofliciating therein as aforesaid, in whose favour the said
hishop shall think proper so to certify to you, 01' if no such certificate
shall be received by yon from the said bishop within three calendar
months next after such vacancy shall occur, then and in either of such
cases you shall forthwith report the circumstances to us, through one of
our principal Secretaries of State, to the intent that we may nominate
sorne fit and proper person, being a clerk in holy orders as aforesaid, to
fi1l the said vacancy. And we do enjoin and command you to present
to the said bishop for institution to any such vacant ecelesíastical
benefice, any c1erk who may be so nominated by us, through one of our
principal Secretaries of State.


52. You are to inquire whether there be any minister within your
government who preaches and administers the sacrament in any
orthodox church 01' chapcl, without being in due orders, and to give an
account thereof to the said Bishop of N ova Scotia.


53. And whereas doubts have arisen whether the powers of granting
licences for marriages and probates of wills, commonly called the




NEWFOUNDLAND-ROYAL INSTRUCTIONS. 44,7
Office of Ordinary, which we have reserved to you, our Governor, can be
exercised by deputation from you to any other person within our said
island under your government, it is our express wiU and pleasure, and
you are hereby directed and required not to grant deputations for the
exercise ofthe said powers, commonly called the Office of Ordinary, to
any person or persons whatsoever in our said island under your go-
vernment.


54. And you are to take especial care that atable of marriages esta-
blished by the canons of the Church of England be hung up in every
orthodox church and duly observed,


55. The Right Reverend Father in God, Edmund, tben Lord Bishop
of London, having presented a petition to His Majesty King George
tbe First, humbly beseecbing him to send instructions to tbe Governors
of all the several colonies and plantations in America, that they cause
al\ laws already made against blaspberny, profaneness, adultery,
fornication, polygamy, incest, profanation of the Lord's day, swear-
ing, and drunkenness in their respective governments to be ri-
gorously executed, and we, thinking it highly just that al\ persons
who shall olfend in any of the particulars aforesaid shoulcl be prosecuted
and punished for their said olfences, it is therefore our will and pleasure
that you take due care for the punishment of the aforernentioned vices,
and that you earnestly recommend that effectual laws be passed for the
restraint and punishment of al\ such of the aforementioned vices agaiust
which no laws are as yet provided. And also you are to use your en-
deavours to render the laws in being more efíectual, by providing for
tbe punishment of the aforementioned vices, by presentment upon oath
to be made to the temporal courts by the churchwardens of tbe several
parishes, at proper times of the year to be appointed for that purpose ;
and for the further discouragement of vice and encouragement of virtue
and good living, you are not to admit any persons to public trusts or
employments in the island under your government whose ill fame and
conversation may occasion scandal. ,


56. It is our further will and pleasure that you recommend to the
legislature to enter upon proper methods for the ereeting and main-
taining sehools in order to the training up ofyouth to reading, and to a
neeessary knowledge of the principles of religion. You are not, how-
ever, to give your consent to any act respeeting religion without a
c1ause suspending its operatíon until our pleasure s'iall have becn sig-
nified thereupon, unless a draft thereof shall have been previously
transmitted by you for our consideration and approval.


51. And we do further direct that in all matters arising within your
government connected with the education of youth in the principIes of
the Christian religion according to the doctrine of the said United




448 NEWFOUNDI,AND-ROYAL INSTRUCTIONS.
Church of England, 01' connected with the prevention of vice and pro-
faneness, 01' the conversion of negroes and other slaves, 01' connected
with tbe worship of Almighty God, 01' the promotion of religion and
virtue, you be advising with the bishop for the time being of the said
diocese of Nova Scotia, and be aiding him in the execution of al! such
designs and undertakings as may be recommended by the said bishop
for the promotion of any of the objects before mentioned, so far as such
designs and undertakings may be consistent with the law, and with
your said commission and tbese our instructions.


58. You are to transmit to us, through one of our principal Secreta-
ries of State, regular monthly returns of the rnilitia of our said island
whenever and so long as the same shall be embodied, with a particular
state of their arms and accoutrements; and for the due preservation and
security of which you are to establish such regulations as you shall
judge to be most effectual for that purpose.


59. y ou shall not upon any occasion whatsoever establish 01' put in
execution any articles of war, 'ar otber law martial, upon any of our
subjects, inhabitants of OUT said island, without the advice and consent
of our Council,


60. And~se of any distress of any otber of our plantations, you
shall, upon application of the respective Governors thereof unto you,
assist them with what aid the condition and safety of our island under
your government can spare.


61. You shall, from time to time, give unto us, through one of our
principal Secretaries of State, an account of the wants and defects of
the island under your government, what are the chief products thereof,
what improvements have been lately made, and what further improve-
ments you eonceive may be made, 01' advantages gained by trade, and
in what way we may contribute thereunto.


62. If any thing shal! happen which may be of advantage 01' security
to our islaud under your government, wbicb is not herein 01' by our
commission providedsfor, we do bereby allow you, with the advice and
consent of our Council, to take orders for the present therein, giving
unto us, through one of our principal Secretaries of State, speedy notice
thereof, that so you may receive our ratification, if we shall approve the
same: Provided always, that you do not, under colour of any power 01'
authority hereby given to you, commence 01' declare war without our
knowledge and particular commands therein first obtained leave for so
doing from us, under our sign-manual and signet, 01' by our order in
our Privy Council..


63. And whereas we have thought fit, by our cornmission, to direct
that in case of your death 01' absence, and there be at that time no per-
son within our said island comrnissioned or appointed by us to be




NEWFOUNDLAND-PROCLAMATION. 449
I.ieutenant·Govemor, or specially appointed by us to administer the
government within our said island, that the councillor whose name is
first placed in our instructions to you, (unless it shall therein be other-
wise signified,) and who shall be, at the time of your absence, residing
within our said island, and who shall take the oaths appointed to be
taken by you or the Commander-in-Chief of our said island, shall take
upon him the administration of the government, and execute our said
commission and instructions and the several powers and authorities
therein contained, in the manner therein directed. It is, nevertheless,
our exprcss will and pleasure that in such case the councillor so admi-
nistering the government shall forbear to pass any aet or acts but what
are immediately necessary for the peace and welfare of the said island,
without our particular order for that purpose; and that he shall not taka
upon him to dissolve the Assembly then in being, or to remove or sus-
pend any of the members of our Council, nor any judgcs, justices of the
peace, or othcr ofíicer, civil or military, witliout the advice and consent
of at least scven of the Council, nor even then without good and suffi-
cient reason for the same, which the said President is to transmit, signed
by himself and the respective Council, to us, through one of our prin-
cipal Secretaries of State.


64. And whereas we are willing to pro vide in the best manner for
the support of the government of our said island, by setting apart suffi-
cient allowances to such as shall be our Covernor or Commander-in-
Chief, residing for the time being within the same, our will a~leasure
is, that when it shall happen that you shall be absent from our said
ísland, one full moiety of the salary, and of all perquisites and emolu-
ments whatsocver, which would otherwise become due unto you, shall,
during the time of your absence, be paid and satisfied unto sueh
Licutenant-Governor or President of the Council for the time being,
which we do hereby order and allot unto him for his maintenance, and
for the better support of the dignity of our government.


65. And you are upon all occasions to send to us, through one of
our principal Secretaries of State, a particular account of your pro-
ceeedings, and of the conditions of affairs within YOUl' government.


(Copy.)
WILLIAMR.


A PROCLAMATION.
WILLIAM TIlE FOURTH, by the Grace of God, of the United Kingdom of


Creat Britain and Ireland King, Defender of the Faith, &c.
To all to whorn these presents shall come, greeting;


Whereas by 0tIl" letters-patent under the great seal of our United
Kingdom aforesaid, bearing date at Westminster the 2d of March,


GG




450 NEWFOUNDLAND-PROCLAMATION.
1832, in the second year of our reign, we have given andgranted to
our trust y and well-beloved Sir Thomas John Cochrane, Knight, our
Governor and Commander-in-Chief of our island of Newfoundland,
full power and authority to summon and call a General Assembly of
the freeholders and householders within our said island; it is therefore
our pleasure, and we do hereby declare and make known to all our
loving subjects within the same, that for the l1urpose of the election of
the members of the said Assembly, the said island shall be divided into
nine districts, to be called respectively,


The district of St. John,
The district of Conception Bay.
The district of Fogo.
The district of Bonavista.
The district of Trinity Bay.
The district of Ferryland.
The district of Placentia and SI. Mary.
The district of Burin .
.The district of Fortune Bay. -


And it is our further wil! and pleasure, and we do hereby deelare,
that the before-mentioned district of SI. John shall consist of and in-
elude all that part of our said island bounded by the shore which is
situate and Iying between Petty Harbour and Broad Cove,


And that the before-rnentioned district of Conception Bay shall
eonsist of and inelude all that part of our said island which, bounded
in like manner, is situate and Iying between Broad Cove and Bay
Verd's lIead.


And that the before-mentioned district of Fogo shall eonsist of and
inelude all that part of our said island which, bounded in like manner,
is situate and Iying between Cape SI. John and Fogo Island, ineluding
that island,


And that the bcfore-mcntioncd district of Bonavista shall consist of
and include all that part of our said island which, bounded in like
manner, is situate and lying between Cape Freels and Cape Bonavista.


And that the before-mentioned district of Trinity Bay shall consist
of and inelude all that part of our said island which, bounded in like
manner, is situate and Iying between Cape Bonavista and Cape Verd's
IIead.


And that the before-tuentioned district of Ferryland shall consist of
and inelude a11 that part of our said island which, bounded in like mano
ner, is sitúate and lying between Petty Harbour and Cape Race.


And that the before-rnentioned district of Placentia and St. Mary
shall consist of and include all that part of our said island which,




NEWFOUNDLAND-PROCLAMATION. 451
bounded in like manner, is situate and Iying between Cape Race and
Rushven.


And that the before-mentioned district of Burin shaIl consist of and
incIude all tbat part of our said island which, bounded in like manner,
is sitúate and Iying between Rushven and Garnish,


And that the before-mentioned district of Fortune Bay shall consist
of and inc1ude aIl that part of our said isIand whieh, bounded in like
manner, is sitúate and Iying between Garnish and Bonne Bay.


And we do further signify and dec1are our pleasure to be that the
said district of Sto John shall be represented in the AssembIy by three
members,


And that the said distriet of Coneeption Bay shall be represented in
the said Assembly by four members.


And that each of the said districts of Fogo, of Bonavista, of Trinity
Bay, and of Ferryland, shall be represented in the said Assembly by
one member,


And that the sald district of Placentia and Sto Mary shall be repre·
sented in the said Assembly by two members.


And that eaeh of the said districts of Burin and Fortune Bay shaIl be
represented in the said Assembly by one mernber.


And it is our will and pleasure that the Governor for the time being
of our said island do appoint sorne fit person to be the returning officer
within each of the said districts,


And we do further declare our pleasure to be that our said Governor
do issue in our name writs for the electlon of the members of the several
districts before mentioned, which writs shall be addressed to the several
returning officers aforesaid, and shall by them be returned to the Colo-
nial Secretary fof1ñe lime being of our sald island,


And it is our will and pleasure that every man, being of the full age
of twenty-one years and upwards, and being of sound understanding,
and being our natural born subject, 01' having beenlawfully natnralized,
and never having been convicted in due course of Iaw of any infamous
crime, and baving for two years next immediateIy preceding the day of
election occupied a dwelling-house within our said island as owner
01' tenant thereof, sha11 be eligible to be a member of tbe said House (lf
Assembly.
- And it is our further will and pleasure that every man who for one
year next immediately preeeding the day of eIection hath occupied a
dwelling-house within our said island as owner 01' tenant thereof, and
who in other respects may be eligible, according to the regulations
aforesaid, to be a member of the said House of AssembIy, shall be com-
petent and entitled to vote for the election of members of the said
Assembly in and for the district within which the dwelling-house so
occupied as aforesaid by him may be situate.




452 NEWFOUNDLAND-PROCLAMATION.
And it is our pleasure tbat tbe votes for tbe members of tbe said As-


sembly shall be taken by the said several returning officers at such one
01' more place 01' places within each of the said districts as shall for
that purpose be appointed in the body of the writ addressed to the re-
turning officer of every sucb district respectively, and at 01' within such
time 01' times as shall for the purpose be tberein limited : but inasmuch
as by reason of the difliculty of internal communication within our said
island, many persons entitled to vote migbt be prevented from the exer-
oise of such their franchise, if in every case it were necessary to attend
in person for that purpose, we do tberefore declare our pleasure to be,
tbat in respect of any dwelling-houss situate at tbe distance of more
than (1) miles from the nearest place of election, witbin any of tbe
said distriets, the vote of any householder, duly qualified as aforesaid, may
be given without his personal attendance, by a written notice subscribed
by such voter, in tbe presence of two credible witnesses, and dulyat-
tested by their signatures ; which notices shall be in such form as our
Covernor for the time being of our said island sball from time to time
directo


And it is our further pleasure, that if any candidate 01' voter at any
such election sball object to any vote then tendered, it shall be tbe duty
of the returning officer to hear such objection, and what may be alleged
in support of, 01' in answer to, the same, and to examine on oath the
parties by 01' against whom such objection may be raised, and any per-
son 01' persons who may be adduced as a witness 01' as witnesses on
either side; and upon such hearing, to admit 01' to overrule any such
objection as may to such returning oflicer appear just and right,


And we do further declare our will to be, that the persons in favour
of whom the greater number of votes shall be given in~ such district
shall be publicly declared by such returning oflicer to be dulyelected
to be the representatives thcreof in tbe said General Assembly, and shall
thereupon be returned and take tbeir scats accordingly: Provided
always, tbat in cases of peculiar doubt 01' difficulty, it shall be compe-
tent for any sucb returning officer to make a special return, setting forth
the grounds of such doubt, upon which the said Hou;e of Assembly
shatl afterwards decide.


And it is our will, and we do further declare, that the Assembly so to
be chosen as aforcsaid shall continué only during our pleasure, and tbat
tbe said Assembly shalt not proceed to the dispatcb of any business,
unless six mcmbers at the least shall be present at and during the whole
of the deliberations ofthe said IIouse thereupon,


(1) Left blank in the House of Commons' Papel', 13.32,No. 704-.




NEWl'OUNDLAND-PI~OCLAMATION.


Aud whereas it may be ncccssary, in order to the complete execution
01' the several purposes aforesaid, that further regulations should be
made 1'01' the conduct 01' the said elections, and the return 01' members
to serve in the said IIouse 01' Assembly, we have therefore authorized,
and do hereby authorize, our Governor 1'01' the time being 01' our said
island, by any proclamation 01' proc1amations to be by him from time
to time issued in our name and on our behalf, to make such further re-
gulations as may be necessary 1'01' the conduct 01' the said elections, and
1'01' thc return 01' mcmbers to serve in the said House 01' Assembly, and
for the due discharge 01' the duties 01' the said returning officer; and
which regulations shall be 01' full force, virtue, and effect,until provision
be otherwise made by law, it being, nevcrtheless, our pleasure that the
regulations so to be made as aforesaid be not repugnant to, 01' incon-
sistent witb, the several provisions hereinbefore contained, 01' any 01'
them.


Given at our Court at 81. James's, on the Twenty-sixth day 01' JuIYl
One Thousand Eight Hundred and Thirty-two, in the third year 01' our
reign .


....-




( 454 )


NOVA SCOTIA.


-


THIS colony is situated between the 4,8° and 49° of north
latitude, and the 60° and 67° west longitude, is bounded on
the north by the River Sto Lawrence, on the east by thc
Gulf of the St. Lawrence and the Atlantic Ocean, and by
Canada and New England on the west. In the year 1784
this province was divided into two governments, of Nova
Scotia and New Brunswick. The Iatter is boundcd on
the westward by the River St, Croix, and by a line
drawn due north from thence to the southern boundary
of the province of Quebec; to the northward, by that
boundary as far as the western extremity of the Bay de
Chaleurs , to the eastward, by that bay to the Bay Verte,
in the Gulf of Sto Lawrence; to the south, by a line in
the centre of the Bay of Fundy; from the River StoCroix
to the mouth of the Musquat River; by that river to its
source, and from thence by a line due east across the
isthmus into the Bay Verte, including all the islands within
six leagues of the coast.-Ency. Brit,


HlSTORY AND CONSTITUTION.


The first grant of Iands in this colony was given by
James l. to his secretary, Sil' William Alexander, from
whom it had the name of Nova Scotia. In 1604 the French
settled in the colony, and gave it the name of Acadia.
Their eoIony was yet in its infancy when the settlement
of New England was first estabIished in its neighbour-
hood, Hostilities perpetually occurred between the set-
tlers in the two colonies, till Acadia was, at the peace
of Utrecht, ceded to EngIand. In 1749 the ministry,
having begun to think that the province was one of con-
siderable importance, offered great advantage to all set-
tlers, particuIarly soldiers and sailors, in N ova Scotia,
and 374<0 persons accordingIy went thither in that year.
'I'he population was estimated by Mr. Colquhoun in 1812
at 100,OOO.-Ency. Brit.


Prince Edward's Island, then called the IsIand of Sto
John, was annexed to the government of Nova Scotia by




NOVA SCOTIA. 455
the commission to Governor Parr on the 11th September,
1784, which commission directed the Governor to call
General Assemblies for the different colonies placed under
his command.


By the instructions to the Governor of Nova Scotia,
also dated 11th September, 1784, he was directed not to
call a General Assembly of the island of Cape Breton,
such Assembly being then inexpedient.


By the commission to the Duke of Richmond of the
10th April, 1816, his Grace was constituted Governor-
General over the province of Nova Scotia, the ísland of
Prince Edward, (formerly Sto John,) and the island of
Cape Breton; and he was authorized to summon General
Assemblies of the freeholders and planters within his
government, which General Assemblies were to make laws
for each of the three places respectively, "not repugnant,
but as near as local circumstances will permít, to the laws
of Great Baitain."


A similar instruction as befare, relative to Cape Bretón,
accompanied this cornmission.


By the commission of the 27th April, 18QO, to the Earl
of Dalhousie, he was appointed Governor-in-Chief over
the Cariadas, the provinces of Nova Scotia, New Bruns-
wick, and Prince Edward's Island; and it was expressly
directed and declared, that Cape Breton should in future
form part of the province of N ova Scotia. The Gover-
nor was authorized to summon a General Assembly for
Nova Scotia and for Prince Edward's Island respectively.


The instructions of the same date refer to and conflrm
the express declaration respecting Cape Breton in the
commission, and directs the Governor to summon to the
Assemblies of Nova Scotia such a number of freeholders
from Cape Breton as were usually summoned to such
Assemblies before the time when the said ieland was first
separated from the province of N ova Scotia.


A proclamation was issued on the 9th ofOctober, 1820,
by Sir James Kempt, the Lieutenant-Governor of Nova
Scotia, making the necessary regulations for carrying into
effect the re-annexation of Cape Breton to Nova Scotia,
and dissolving the separate council of the latter place.


By an act of Assembly of Nova Scotia, dated QQd
December, 1820, the civil government and administration
of justice in Cape Breton was directed to be conformable
to the usage and practice of the Province of Nova Scotia.
The act recited, that Cape Bl'eton was in futuro to be




NOVA SCOTlA.


known by thc name of the County of"Cape BrctolJ, and
to be representecl in the Assembly of the province by two
members.


The Supremo Court was directecl to be held by the
Chief Justice, 01' in his absence by two of the Assistant
Justices 01' one Assistant Justice, anel the Associate Circuit
Judge of the Court, and that the Governor might ap-
point five fit persons to be judges of the Inferior Court of
Common Pleas in the said county.


The granting of probate of wills ancl of letters of admi-
nistration for tbe said county were to be done at Sydney.
The barristers and attornies of the Supreme Court were
to be allowed to practise in that and all the other courts
of the county, but not elsewhere out of the county, unless
admitted in the Supreme Court at Halifax in N ova Scotia.
-Papers relative to the re-annexation of Cape Breton
to Nova Scotia, House ' of Commons' Papers, No. 4<16,
ZSel June, 18Z3o


The constitution of N ova Scotia is, by royal commis-
sion, a representative provincial government, one of the
three original forms of the colonial constitutions. Its
legislature is formecl upon that of the United Kingelom,
and consists of a Council ancl House of Assemhly. The
Council are twelve in number, at the head of whom are
the Chief Justice of the province, who is the presielent,
and the Bishop of Nova Seotia, who ranks next to him.


In'1758 a House of Representatives was formed, agree-
ably to a constitution granteel to the colony, eorresponding
with that of England.


The Legislative Assembly is composed of forty-one
members. Theyare elected by inhabitants holding an
annual interest of 408. in land, 01' who are householders,
-2 Macg, Brit. Amer. and Almanack for N ova Scotia,


LAWS. (1)
All causes, both civil and criminal, are determined ac-


cording to the common and statute law of England, and
the statutes of the province. The bankrupt laws of Eng-
land are said not to extend to this province. (2)


COURTS.


The courts of law are constituted to correspond with


(1) See ante, p. 3 to 16, Oll the ge- subject to thc Iaw of the mothcr coun-
neral topie how far the colonies are try,


(2) But see ante, pp. 102, 103, 1M.




NOVA SCOTIA.


those of England. 'I'ho practice of the Court of Chan-
cery is agrceable to that of England. 'I'he Governor is
chancellor, but there is also a Master of the Rolls. The
Supreme Court of Judicature is modelled after the Court
of King's Bench in England, and closely follows its prac-
tice. lt possesses also the peculiar jurisdictions of the
Courts of Common Pleas and Exchequer, The Supremo
Court cansists of one chief justice, three puisne judges,
and an associate judgc. The law officers of the Crown
are an Attorney and Sclicitor-general.


There is a Court of Common Pleas in each of the ten
counties into which the province is divided. Their juris-
diction extends only to civil actions within the county.


Justices of the peace take cognizance of breaches of
the peace, and of matters of debt not exceeding J:.5.
Appeals from all the inferior courts may be made to the
Supreme Court, and from the Supreme Court to the
King in Council. There is a Court of Quarter Sessions
in each county,


There is a Court of Error and of Marriage and
Divorcc, composed of the members of the Council.


There is a Court of Vice-Admiralty, presided over by
thc Chicf J ustice of the province.


There is a Court of Escheats and Forfeitures, presided
over by onc commissioner, and a Court for thc probate of
wills and granting letters of administration. The juris-
diction of this court is entrusted to an officer styled the
Surrogatc General of the Province.


The general expense of the judges and courts of jus-
tice is stated in the account of the Colonial Revenue to
amount to et'5000.-2 Macgregor's Brit, Amer, and Alma-
nack.


-


CAPE BRETON


Is an island near the castern continent of N orth America,
lying between 4,50 and 470 of north latitude. It is se-
parated from N ova Scotia by a narrow strait, called
Causo, and is about 100 miles in length, and 50 in breadth
It is surrounded by little sharp-pointed rocks, separated
from cach other by the waves, above which sorne of their
tops are visible. AH its harbours are open to the cast,
turning towards the south. Except in the hilly part, the
surface of the country has but little solidity, being every




458 NOVA SCOTIA.
where covered with a light moss and with water. The
climate is very cold.


HISTORY AND CONSTITUTION.


Cape Breton was discovered by Sebastian Cabot, and
afterwards by Verazani, who named it IsIe du Cap.
Fishermen had resorted to this island every summer, but
the French, who took possession of it in 1713, were pro-
perIy the first inhabitants. They gave it the name of
IsIe Royale, .and fixed upon Port Dauphin as the place
of their settlement. On account of the difficulty of ap-
proaching this place, the settIers subsequently changed to
Louisbourg, the access to which was easier, The forti-
fication of Louisbourg was not however begun till 1720.
The island, which is the, key to Canada, was attacked
and captured by the English in 174,5, restored to France
by the treaty of Aix-Ia-Chapelle, and again attacked and
captured in 1758. The possession of the place was con-
firmed to Great Britain by the peace in 1763. It was for
sorne years much neglected, but after the first American
revolutionary war, the British government turned their
attention to the colonies that still remained in their pos-
session, and Cape Breton received some degree of consi-
deration. It was made a distinct colony from N ova
Seotia, and its government was directed to be vested in
a Governor and Council. .


In 18:20 it was re-annexed to Nova Seotia, and 1l0W
sends two members to the General Assembly of that pro-
vince. See more 00 the subject of this island, ante,
and aIso Eney. Brit.; and 1 Macgregor's Brit, Amer.


PARTICULAR LAWS.


Wills.
32 GeD. ~, c. 11. An Act relating to Wills, Legacies,


and Executors, and for the settIement and distribution of
the estates of Intestates.


Sect, 1. Tenant in fee ofIands (except infants, married
women, 01' idiots,) may devise same by will signed by him
01' sorne other in his presence, and by his directions,
before and attested by three witnesses.


2. Devise revocable only by another will 01' other writ-
ing, 01' by destruction thereof




NOVA SCOTIA. 459
S. Nuneupative will of sum exeeeding .fSO bad, unless


proved by three witnesses, and testator bid persons wit-
ness same as his will, and made it in his last illness, and
where he dwelt for ten days before, except he was taken
ill when at a place away from home, and died there.


4. After six months from speaking sueh will, no proof
thereof to be reeeived unless the words spoken were put
into writing within six days after making same,


5. Probate of sueh will not to be granted till fourteen
days after testator's death, nor till widow 01' next of kin
cited,


6. Writtell will of personalty irrevocable by word of
mouth, exeept it be proved by three witnesses that same
was put in writing and allowed by testator.


7. Executor must, in thirty days after testator's death,
prove andreeord his will, 01' present and renounee same,
and thereupon administration may be granted to widow
01' next of kin, and on their refusal, to a creditor of the
deceased.


Debts.
S2 Geo. 2, c. 15. An aet for making lands and tene-


ments Hable to the payment of Debts.
Sect. 1. When personal estate is insuffieient to satisfy


a judgment, exeeution may go against debtor's real estate,


Frauds and Perjuries.
S2 Geo. 2, e. 18. An Aet for preventin,g Frauds and


Perjuries. ,
Seet. 9. Executions may be levíed on trust estates in


lands as of lands themselves.
10. Trust estates deemed assets by descent in the


hands of the heirs,
15. Executions to bind personalty from delivery there-


of to the offlcer, who must indorse thereon time of re-
ceiving the same,


8tatute of Limitaiions.
S2 Geo. 2, e. 24,. An Act for Limitation of Actions,


and for avoiding Suits at Law.
Sect, l. SU1tS at law or in equity for lands to which


any person has title, must be sued within twenty years
after title first aeerues.




4,60 NOVA SCOTIA.
2. No person mayenter into lands after twenty years


from their title first accruing.
3. Minors, married women, pel'sons non campos, pri-


soners 01' absentees, when their title first accrues, may
bring their action, 01' enter within ten years after their
disability ceases,


Rate of Interest.
10 Geo. S, c. 5. An Act for establishing the rate of


Interest,
Sect. 1. The legal rate of interest to be oC6 per cent.


per annum, and securities reserving more declared void.


Absent Proprietors.
31 Geo.3, C. 1. An Act in addition to and amendment


of an Act made in the Ihirteenth year of his present
Majesty's reign, intituled "An Aet for making and levy-
ing the expenses attending the executing 'Vrits of Par-
tition."


If non-resident proprietor of lands divided by parti-
tion refuses 01' neglects to pay his share of the eosts, the
Supreme Court may direct a sale by public auction of
sufficient part of his lands, and good conveyances there-
of may be made by the sheriff of the county where the
lands líe.


3S Geo. 3, c. 6. An Act in addition to and amendment
of an Act(S) made in the fifth year of the reign of his
present Majesty, intituled "An Act to enable the inha-
bitants of the several Townships in this Province (Halifax
excepted) to Cause any absent Proprietor of Lands within
the same to paya dividend 01' proportion of any county
01' town eharge, to be assessed according to Law, and to
bear their just proportion in repairing Highways, Roads,
and Bridges within the said townships respectively,"


Sect. 1. Where no person appears to pay taxes assessed
on lands, 01' to perform highway labour for the same, and
there are no goods thereon, justices of the peace may
order such lands to be ad vertised to be let for three
months; and if no person will give for one year's rent


(3) 5 Geo, 3, c. 5, which prcvides,
that al! non-resident proprietors of
lands pay their quota of county and
town cbarges for labour on highways,


01' on default that one justice may
let out such person's laude for pay~
men t thereof




NOVA SCOTIA. 461
the amount of such arrears and costs, then the Supreme
Court may direct a sale thereof, and conveyances to be
executed by the clerk of the peace.
~. If the rents 01' purchase-money of such lands be


more than sufficient, the surplus to be paid to the owner,
and if unclaimed for three years, (it being previously paid
to the trcasury of the county 01' district where such lands
are,) to be applied to public uses.


Estates Tail.
55 Geo, 3, c. 14·. An Act to provide an easier method


than is now used for barring Estates Tail in Land. .
Sect. 1. Tenant in tail, as in England, may bar such


entail by moving Supreme Court in term time for leave to
acknowledge lease and release then produced conveying
such lands, and for rule of court that the same may be
enrolled therein for such purpose, and proving the instru-
ment crcating such entail; and court may take such ac-
knowledgment, and cause entry thereof to be made, and
may make a rule, that unless cause be shown befare last
day of ensuing term, the indentures be so enrolled; such
rule to be duly advertised in the Royal Gazette at Halifax.
~. If sufficient cause against enrolling such indentures


be not shown, they may be enrolled accordingly.
3. Such indentures from their enrolment to have effect


of a common recovery, provided they be registered.




( 462 )


PRINCE EDWARD'8 I8LAND.


-


THIS colony, formerly known as the Island of Sto John, is
situated in the gulf of Sto Lawrence. It is twenty-two
leagues long but hardly more than one league broad. It
somewhat resembles the figure of a crescent, but with
many indentations on both sides. The climate is severe,
the coast good, the ports excellent. It has many fine and
well-watered meadows, an 'extremely varied soil, capahle
of the culture of all sorts of grain, and it abounds with
game and flsh.


It was discovered by Sebastian Cabot upon Sto .John's
day in the year 1497, after he had quitted Newfoundland,
and was named by him the Island of St. John, in honour
of the saint, The English however did not make any
use of the disoovery. The French, after having made a
settlement in Canada, took possession of the island, and
claimed it as their own in right of an alleged discovery by
Verazani, who however had not visited the place till 1523.
The claim, though manifestly ill-founded, was not dis-
puted, for the island was not then deemed of much vaIue
and importance, and the French were allowed quietly to
proceed with the settlement. Theír elforts were ill-
directed and unsuccessful, The Company ofNew France
received a grant of it in 1619 from the Crown, but after
many years of useless expense and labour they transferred
their rights, in 1663, to sorne private individuaIs. It was
never properIy settIed tilI 1749, when about 3000 inhabi-
tants of Acadia passed over to the island, and being
almost all agriculturalists, the colony soon began to flourish
under their care. The government unwisely attempted
to confine their Iabours to agriculture alone. It was made
a dependcncy of the Royal Island (now called Cape Bre-
ton) which itself depended upon Canada. When taken
possession of by the English they drove out the French
inhabitants, amounting to nearly 3000 persons. It is




PRINCE EDWARD'S IBLAND. 463
said (l) that the Count Egmont applied to Charles 2 to
have the island granted to him on a feudal tenure, under-
taking to furnish 1200 men for the defence of the eolony,
and to hold it as a fief from the Crown of England, pro-
vided he was allowed to grant it out upon the same eondi-
tions in arriere fiefs to other persons; that Charles would
readily have agreed to these eonditions, but that the
Crown Jawyers having declared that by the Aet of Par-
liament recently passed, abolishing all feudal tenures, the
possessions of the Crown in the N ew W orld were as much
governed as the eountry at home, he was obliged reluc-
tantly to refuse the offer, The island was therefore di-
vided into allotments, whieh after some time were ehiefly
oceupied by Seoteh and Irish adventurers.


It shortly afterwards again returned into the possession
of the French, by whom it WllS held untill758, when it
surrendered to Great Britain, and being ceded to the
British Crown at the peace of 1763, it was, together with
Cape Breton, annexed to the government of Nova Scotia.
In 1768 the inhabitants addressed the Crown by petition,
requesting that a separate and distinct government might
be established in the island. The petition was favourably
reeeived, and in 1771 Walter Paterson, Esq. went out as
Governor, provided with authority to convoke a House of
Assembly. In 1773 the first House of Assembly met,
and the colony is now governed, like the rest of the Bri-
tish possessions in North Atnerica, by acts passed by the
Governor, Council, and Assembly, and confirmed at
home. The inhabitants of the island distinguished them-
selves by their Ioyalty during the American revolutionary
war, and the Duke of Kent having afterwards repaired
some of the injury whieh they had suffered during the
contest, and performed other acts that gave him a de-
served popularity among them, they testífled their good
will towards his Royal Highness by passing in the yeal'
1799 a Colonial Act of Assembly (38 Geo. 3, c. 1,) by
which, in honour of his Royal Highness, the name of the
island was changed from that of ttle Island of St, J ohn
to Prince Edward's IsIand. Charlotte Town is the ca-
pital of the colony.-See 8 Raynal's East and West Indies,
24,3, 245, and 1 M'Gregor's Btit. America, 353, 366.


(1) 8 Rayn. E. and W. Iud. ~44.




464 PRINCE EDWARD'S ISLAND.


LAWS. (~)
The laws of the island must bc thc laws of England in


force at the time of its acquisition, (so far as they are ap-
plicable to the colony,) the laws of Nova Scotia so far as
they have not been altered 01' repealed since the island
became subject to a distinct government, and the acts
passed in its own Assembly since that periodo


COURTs.


There is a Supreme Court of Judicature exercising the
powers of the Court of King's Bench and Common Pleas
in England, where the law is administered by one chief
justice and two puisne judges. The interests of the
Crown are protected by an Attorney and Solicitor-Gene-
ral. There are also justices of the peace with powers
similar to those exeroiscd by such persons in England.


Wills.
By the Colonial Act, 21 Geo. 3, c. 2, lands may be


devised by will in writing, subscribed by the testator, 01'
byanother person in his presence and by his authority,
and attested by three witnesses. And such wills cannot
be revoked but by a subsequerit will similarly executed.


A nuncupative will "where the estate bequeatheel" ex-
ceeds the value of .t:30, is bad, unless preved by the oath
of three witnesses, and unless it be preved that the testa-
tor, at the time of pronouncing the same, desired the per-
sons present to bear witness that such was his will, and
unless it was made in his last illness. N o proof of such
will can be receiveel after the expiration of six months,
unless the testimony was put into writing within six days
after the making of the will,


Debt.
In default of personalty, lands are made Hable to the


payment of debts by the 26 Geo, 3, c. 9, butby the 35
Geo. 3, c. 8, lanel~ levied upon are not to be sold within


(2) See ante, p. S to 16, 01\ the topie how far the colonics are subjeet to
the law of the mother country,




rRINCE EDW ARD'S rSLAND. 465
two years after the levy. By the 59 Geo. 3, c. 7, lease-
hold interests may be sold within six months.


Insoloent Debtors,
The court, 01' any two justices thereof, may order a


part, 01' if nccessary the wholc of an insolvent's realty and
personalty, to be assigned to his creditors, and may then
discharge him, The assignees must then pay the fees of
the imprisonment, and divide the remaining part of the
produce of the property among the creditors,


Conveyances if Real Estates.
These when made by married women, by deed jointly


with the husband, are, by 36 Geo. 3, e. 3, declared to be
equivalent in effeet to the levying of a fine in England,
provided that the woman acknowledge the same as her
free act and deed before a judge of the Supreme Court
of Justiee 01' a justiee of the peaee, and the acknow-
ledgment be by him certified on the deed, By the 59
Geo. 3, c. 9, estates tail may be barred in the same
manner if the deeds are duly registered.


Letters of attorney, under the authority of which deeds
of sale 01' conveyances are, by 49 Geo, 3, c. 4, to be made,
must be registered at length in the registrar's office, and
are to have no effect till soregistered.


A feme covert may, under the Colonial Act, 1 Geo. 4,
e. 1, acknowledge a deed ofIands for barring dower, if in
the United Kingdom 01' any British colony, before a judge
of a Court of Record, Master in Chancery, 01' Justice of
the Peace. If taken in the United Kingdom, the acknow-
ledgment must be authenticated by the usual affidavit and
certificate, under the seal of a public notary, and ifin any
British colony, by a certificate under the hand and seal
of the Governor i 01' if the married woman Uve in any
foreign kingdom, the acknowledgment may be taken be-
fore any minister, ambassador, 01' consul from the United
Kíngdom, and certified under his hand and seal, and in
any such case shall be registered with the deed of con-
veyance, and shall be an effectual bar to her right of
dower.


HU




( 466 )


AFRICAN COLONIES.


CAPE OF GOOD HOPE.


-


THE colony of the Cape of Good Hope stretches along
the whole of the southern extremity of Africa, from the
Cape of that name (originally called Cabo dos Tormentos,
the Cape of Storms, by the Portuguese,) to the Great
Fish River, 01' from 17° 36' to 28Q 17' east longitude, and
Hes between 529~ 55' and 34G' 17' south latitude. Its most
western point is at the mouth ofthe Koussie River, which,
with Bosjesman's eountry, forms the northern boundary of
the colony, On the west and south it is hounded by
the Atlantic and Indian oeeans, and on the east by
CafI're land. Its mean breadth from west to east is about
550 miles, from north to south, about 223 miles. Cape
Town is the capital.-Aecount ofthe Cape of Good Hope,
London, 1819, p. 3.


The air is on the whole salubrious. The predominant
soils of the eountry are a stiff clay, into which no plough
will enter until it is thoroughly soaked with rain, and a
light red sand, eapable oí extreme fertility wherever it is
sufficiently irrigated. .


The geographieal position of the Cape is very com-
mandinga Its distanee from the coast of Brasil is a
month's voyage, and from British Guiana a voyage of six
weeks. It is equally distant from the Red Sea, and
within two month's voyage from Coromandel and Ma-
labar.


The colony at the Cape comprehends at least 120,000
square miles. Its climate is tempera te, and its natural
productions numerous and abundant.-Cape Almanack
for 18SL


HISTORY AND CONSTITUTION.


The colony surrendered to Great Britain in 1795. The
powers of government that had prevíously been exercísed




CAPE OF GOOD nOPE. 467
by the Governor and Council were then vested in the
British Governor alone. It was ceded in 1803 to the
Batavian Republic. It was again captured in 1806.
From 1814 the sole authority was again vested in the
English Governors. They cxercised an appellate juris-
diction ovar all causes where the amount exceeded .i'200
01' 1000 rix dollars, Up to 1812 the lands had been held
on thc conditions of a loan-tenure, (1) but in that year it
was dírected that a permanent interest in the lands should
be given to thc settler.


COURTS. (2)
There were a President and members of the Courts of


Justice, President and members of the Burgher Senate,
and Landdrosts and Heemraaden of districts. This sys-
tem was changed, so far as related to the Supreme Court,
by the Charter of Justicc granted in 1827, and again by
the Chárter of Justice of tbe 4~th of May, 1832. (See post.)


AH the judicial officers, except the Judges of the Su-
preme Court and His Majesty's Fiscal, hold their appoint-
ments during the Governor's pleasure,


HI-IB


(1) The tenures ofland are various,
The most ancient tenure is that ofwhat
are called loan lands, 01' certain farms
granted to the early settlers at an ano
nual rent of twenty-four rix dollars,
It is a kind of Jease in perpetulty,
the payment of the rent heing held to
be a constant renewal. 'I'hrce farms
are calcnlated to conlain exactly nine
square miles; the number of them in
the whole colony is about 2000.


Gratuity lands are a custornary co-
pyhold and pay about the same rent
as the loan farms, They are sup-
posed to have be en grante<l. as marks
of favour, and are chiefly in the
neighbourhood of the Cape, and in
better state of cultivation than the loan
farms,


The qoit rents are the produce of
pieces of waste land generally Iying
eantiguous to an estate, far which the
owner pays annually at the rate of a
shiJling an acre. under a lease granted
to him for lifleen years.


The íreehold estates are grants of
about 120 Englísh acres each, whieh
were made to the original scttlers ;
they lie chicfly round thc Cape. and


contain tbe best land of the eolony.-
Aeeount of South Africa,


(2) It is much to he regretted that
that part of the Report of the Com-
missioners of Inquiry which related to
the adrninistration of j ustice in this
eolany has not been printed. From
the other portions of the rcport, those
npon the trade and finances of the
Calle. the following notiees have been
extracted, MI', Barrow's accouut of
Southern Africa, smallcr publica-
tians on the same subject, and the
Cape Almanaek have also been con-
sulted, The Report of the Cornmis-
sioners upon the administratian of the
law in the ealony must have been,
judging from the other portions of
their lahour,a most valuable docu-
mento It was taken under the follow-
ing instructions given in January,
1823:-


" The judicial inquiry wil1 emhrace
the whole system and administration
of civil and criminal justice, including
the eonduet and regulation of the pa-
Iice, and the jurisdictíon, separate
and concurrent, of the Courts uf Ad-
miralty."




468 CAPE OF GOOD HOPE.
The chief administrativa officers under the Governor


are the Landdrost and Heemraaden, The nature of their
powers and duties wiII appear in the following sketcb


.taken from tbe Commissioners' Report :-
The Cape of Good Hope is divided into four districts,


over each of which is placed a civil magistrate called a
Landdrost, wbo with six Heemraaden 01' a Couneil of
Country Burghers is invested with powers to regulate the
police of his district, superintend the affairs of govern-
ment, adjust litigations, and determine petty causes. Tbe
decisions of these magistrates are, however, subject to an
appeal to the Court of Justice in Cape Town.-l Barr,
Account of Soutb Afríea, 12.


Landdrost.
The Landdrost executes the orders of tbe executive


government, and is armed with very extensive powers of
police. In these duties he is assisted by Field Cornets,
who are selected from among the most respectable inha-
bitants ofthe several subdivisons of the district, and upon
the recommendation of the landdrost are appointed by the
Governor, Instructions for the guidance of tbe landdrosts
were drawn up in 1803, under the administration of Gene-
ral Janssens, were approved by the Batavian government,
and have since been adopted, with alteratíons introduced
by regulations promulgated by British Governors. Tbey
contain the rules by which the affairs of the several dis-
tricts of the colony are administered by them in the se-
veral departments of justice and police, and in collecting
and disbursing the local revenues,


Heemraaden,
Tbe number of tbe Heemraaden bave varied according


to tbe population and extent of each district, not being
less than four, and not exceeding eigbt. From the great
extent of sorne of the districts it has been found necessary
to establish sub-drostdies, differing in no respect from the
constitution of tbe larger divisions except in being respon-
sible to the landdrosts and heemraaden for tbe colleetion
and appropriation of tbe local taxes,


At Simon's Town the offieer who is in military command
of the station bas been appointed Government Besidenr,




CAPE OF GOOD HOPE. 469
and latterly three heemraaden have been appointed to
assist him in the duties, which in evel'Y respect are those
of a landdrost. At Port Elizabeth and at Port Frances
two magistrates have been recently appointed, with a
limited jurisdiction over slight offences and in matters of
police.


The original appointment of the heemraaden is made
by the Governor; the two senior members of each board
retire annually, and the landdrost and remaining mem-
bers name four persons, out of whom two are appointed
by the Governor to succeed, The retiring members are
re-eligible; and the requisite qualifications consist of the
occupation of an estate on loan within the district, 01'
the possession of certain immoveable property at the
drostdy 01' seat of the district magistrature, having at-
tained thirty yeal's of age, and having resided three years
in the district.


In conjunction with the landdrost, and under his pre-
sidency, the heemraaden hold monthly meetings for thc
transacting the civil and criminal business of the district,
and auditing the expenditure. Thcy have also weekly
meetings in their judicial capacities, at which cases are
heard and decided, 01' preliminary informations taken.
Extraordinary mcetings are held for the annual receipt
of taxes, 01' for the trial of civil causes, for which a daily
allowance is made to the members.


The landdrost and heemraaden are assisted in the
performance of theis administrative and judicial functions
by the district secretaries, who are appointed by the Go-
vernor. They frequentIy unite with their office that of
vendue master, 01' superintenderlt of auction sales in the
district; and all have an exclusive privilege to act as no-
taries and to keep registers of wills, acts, and legal instru-
ments drawn by them, and executed in their presence by
the inhabitants of the district.


There has been no regular form observed in the con-
struction 01' promulgation of the laws. The enactment of
new laws 01' thc' modification of old ones has been an-
nounced to the public under the various forms of notices,
orders, circular letters to the landdrosts, advertisements,
minutes, and lastIy of ordinances. A commission was ap-
pointed in the year 1819 to make a compilation of all the
proclamations that were published by Dutch 01' British




470 CAPE OF GOOD HOPE.
authority, and eight volumes in manuscript have been col-
lected, and a digest of the contents is in preparation.


A collection of the proclamations and orders that were
considered to relate to the administration of justice in the
country districts was printed and distributed among the
landdrosts. It was not however complete.


The commíssíoners (in 1826) recommended that the
whole territory of the Cape of Good Hope, which is now
subject to His Majesty's dominion, should be separated
into two prorinces, (3) to be called the W estern Provínee
and the Eastern Province. The free population of the
first they stated might be estimated at 45,014, and the
slaves at 28,934; that of the latter at 39,513, and the
slaves at 6,.575.


The chiefjustice is required to certify that thc laws and
ordinances that may be pássed by the Governor in Coun-
cil contain nothing that is inconsistent with the laws of
the colony, or with that part of the law of England which
is in force here.


The Burgher Senate originated in the appointment of
two persons by Commissioner Van Goens, in the yeal'
1657, to deliberate in criminal matters and to assist in the
trial of freemen, as contradietinguished from those who
were in the service of the Dutch East India Company. In
the following year this number was increased to four,
under the appellation of" Burgher Raaden," or Burgher
Council, and their jurisdiction was extended to civilcauses.
They continucd to exereise these functions until 1784,
when a Court of Justice was established, composed of a
President, who was a member of the Couneil of Policy,
and twelve members, six of whom were servants of the
Dutch East India Company, and six were members of
the Burgher Senate, who were made permanent. They
continued to exercise their share of the judicial functions
until the courts were remodelled in 1792 by the Dutch
government. They have since formed a kind of Admi-
nistrative Council.-Rep. Commissioners of Inquiry into
the Administration of Government at the Cape of Good
Rape, House of Commons' Papers, May, 1827, No. 282.


(3) This rccommendatlon is 1l0W carrled into effcct. See the Chárter of
JU5lÍce, P05t, 483.




CAPE OF GOOD HOPE. 4'71


Cape Town.
Six burghers constitute a senate for the government of


the town. Their functions are similar to those of OUl'
aldermen. They mediate between the boors of the coun-
try and the tradesmen of the town. They have not the
power of inflicting any punishment, but report crimes and
misdemeanors to the fiscal, who is mayor of the place and
Attorney-General of the colony.-An Account of the
Cape.


COURTS.


The only members ofthe Court of Justice at the Cape,
who had any professional education, at the time of the
commissioners' inquiry, were the fiscal and the secretary.
The jurisdiction of the court extended to the trial of
offences commizted by the military, In all such cases,
however, the Governor, as commandcr-ín-chief, had the
power of nominating two military officers to sit on the
trial and give their votes with the ordinary members.
The decision was by the majority of votes. Two of
the members in turn formed a monthly commission,
before which written evidence was produced by the at-
tornies of the parties and every information col1ected
against the full meeting of the court, which was held once
a fortnight. AH suits under ,f40 were decided in an in-
ferior court, called the Court of Commissaries for trying
Petty Causes. In the country districts the landdrost and
heemraaden were empowered to give judgment in all cases
where the damages to be recovered did not exceed ,f30.
The Court of Commissaries was also a court for matrimo-
nial affairs (4) and consisted of a President and Vice-Pre-
sident and four members, whose situations were merely
honorary and their appointments biennial. It granted
licenses for marriage where, on examination of the parties,
there appeared to be no legal impedimento If either of the
parties had been married before and had children, a certi-


(4) Mr. Barrow (vol. i, p. 252,)
mentions, as in force in hls time, an
absurd Jaw by whieh tbe parties in.
tending to marry were obliged to be
present at the Cape, in order to an ..
swer eertaiu interrogatories and pass
the forms of offiee there, the chief in.


tent oí which was to see that no im-


proper marriage took place. OC course
the journey was purcly vexatious, CoL'
she consurnmation freqoently pre-
ceded the ceremony. which was never
refused, at least if the rnan, after
having satisfied his passicn, was still
ready to perform his promlse.




CAPE OF GOOD HOPE.


ficate was produccd from thc Sccretary of the Orphan
Chamber, 01' from the notary appointed to administer the
affairs of thc children, that the laws of the colony relating
to inheritance had been duly complied with.


'l'he Weeskammer, 01' Orphan Chamber, for managing
the effects of minors and orphans, was one of the original
institutions of the colony, and was modelled on those es-
tablishments of a similar kind that are still found in every
city and town of Holland. '


The Orphan Chamber consisted of a president, four
members, a secretary, and several clerks. Their emolu-
ments arose from a per centage of~~per cent, on the amount
ofall property coming under their administration, and from
sums of money accruing from the interest of unclaimed
property, and the compound interest arising from the un-
expended incomes of orphans during their minority--e-S
Barrow's Account of Southern Africa, 'l'his chamber is
now abolished, see thc Chárter of Justice, post, 483.


By their laws of property the estates and movcables of
two persons entering into matrimony became a joint .stock,
of which each party had an equal participation, and on
the death of either the children were entitled to that part
of the joint stock which belonged to the deceased, unless
it was otherwise disposed of by will, which was only
permitted under ccrtain restrictions and limitations,


A "Supreme Court of the colony of the Cape of Good
Hope " has bcen established by charter (see post.) The
salary of thc Chief Justice is stated in the Cape Almanack
to be cf~500, that of the p'uisne JuClges o€1500 eachr


Iusolcent Law.
Ordinance 64, passed August 6th, 18Q9.


Sect.4. Any person departing, 01' remaining absent from
the colony, 01' departing from his dwelling, 01' otherwise
absenting himself with intent to defeat 01' delay his ere-
ditors, 01' not satisfying a sentence, 01' not pointing out
sufficient property for its satisfaction, 01' when sufficicnt
cannot be found, 01' making any fraudulent alienation,
transfer, gift, cession, delivery, mortgage, 01' plcdge of any
of his effects, shall be considered insolvent.


16. Creditors of a company may petition against all, 01'
one, 01' more of thc partners ; but this is not to prevent
the creditors of a company from proceeding against any
partner thereof in respect of debts due by such compuny.




CAPE OF GOOD HOPE. 473
19. Orders for sequestration are to be forthwith lodged


at the sheriff's office for registration; whereupon the
master, if the order has been made at the instance of
creditors, shaIl cause the same to be notified in the Ga-
zette, and the insolvent is then to lodge with the master
a list of the names and places of abode of his creditors.


9.4. Petitioning creditors may, on obtaining orders for
sequestration, cause the debtor to be summoned before
the Supreme Court, to show cause why his estate should
not be sequestered.


26. In case of unfounded, vexatious, 01' malicious peti-
tions, the court may, on proof, award damages, 01' leave
the party to his action.


29. After order for sequestration, all judgments shalI be
stayed, but creditors may in such cases prove for both
debt and costs; and property attached, but not sold, shall
be placed under sequestration, and the person holding
the judgment shaIl be, entitIed to such preference over thc
proceeds as by law is created ovcr such property in vir-
tue of the attachment.


30. After order for sequestration, alI pending actions
for debt shaIl be stayed, and the plaintiff may prove for
both debt and costs,


35. In cases of mutual credit the balance only shall be
proved 01' paid on either side.


38, No person whose debt depends upon a contingency
01' condition, shall be entitled to petition 01' vote in the
choice of trustees 01' othcrwise, so long as the contingency
shaIl nothappen 01' the conditíon shall not be performed,


39. In case of absence of a c1aimant from the colony, 01'
in any other case where the coürt is of opinion that the
debt can eventually be proved, it may aIlow such c1aim to
be entered on the proceedings, give reasonable time for
proof and make an order for securing the amount, in case
of its being afterwards established.


4·3. Creditors may vote by agents duly authorized.
91. Any agrcement, &c. made by an insolvent in order


to obtain the signature of creditors, is null and void.
93. A trustee becoming insolvent, and being indebted


to the esta te for which he was trustee, shall not be dis-
charged therefrom by obtaining his certificare.


S/lerijf.
The office of high-sheriff was originalIy created on the




474 CAPE OF GOOD HOPE.
1st January, lS28, under the provisions ofthe royal eharter
for the bctter and more effeetual administration of justice
in this colony. It is now subject to the regulations contain-
ed in the last charter. (See post.) The sherlff''s duty is to
carry into execution a11 the sentenees and deerees of the
Supreme 01' Circuit Courts. :Fo1' this purpose he is di-
reeted to appoint a deputy-sheriff for eaeh of the country
distriets throughout the eolony, for whose eonduct in all
their official duties he is responsible, and who aet in the
same manner in their several distriets as is done by the
bigh sheriff at Cape Town, and transmit to the head office
the amount of levies made by them,


By rule 143, sec, '1, "It is ordered by the court that
the sheriff shall, on the first day of every term, exhibit to
the court, on oath, a statement of a11 his receipts and pay-
ments by virtue of his said office during the quarter of a
year next preceding the same term, and speeifying in such
statement what sums then remain in his hands, and on
what aecount, and for whom the same were received by
him, and thereupon the saíd sheriff shall be entitled to
and shall receive a certificate thereof.


"The said statement shall be filed with the master,
and it shall be permitted to any attorney of this eourt, at
a11 reasonable times, to inspeet the same and to take ex-
traets therefrom without fee,'


Court 01 Vice-Admiralty.
This court eonsists of one Judge, who is generaIly the


Chief Justiee of the colony.


Police Court,
This eourt is held before the J udge of Police and Re-


sident Magistrate of Cape Town and tbe Cape District.
The salary is .;eSOO.


Recovery 01 Small Debts in the Cape District,
1'0 recover any sum under .:EZO recourse must be had


to tbe Court of tbe Judge of Police in Cape Town, or to
that of the Resident Magistrate in the country,


It is at the option of the magistrate, if the evidence be
defective, to examine either plaintiff 01' defendant on oath,


When judgment has been given, a warrant is handed




CAPE OF GOOD IIOPE-CHARTER OF JUSTICE. 475
over to the messenger, which he is bound to execute on
the defendant, if resident in town, within twenty-four
hours.


Matrimonial Court for Cape Town and Cape Dlstrict,
The J udge of Police is generally the Judge of this court,
The Matrimonial Courts in the country distriets are


composed of the Resident Magistrate and the Clerk of the
Peace, where these officers exist, and where there is no
Clerk of the Peace, of the Resident Magistrate and his
clerk only.


-


Extract from Patents of thc Second Year if ihe Reign
01 King wuus« the Fourth.


CHARTER FOR SUPREME COURT OF JUSTICE AT THE CAPE
OF GOOD HOPE.


WILLIAM the FOURTH, by the grace of God, of the United Kingdom
of Great Britain and lreland King, Defender of the Faith, To aIl
to whom these presents shaIl come greeting: Whereas it is expedient
to make provision for the better and more eflectual administration of
justice in our colony of the Cape of Good Hope, and in the several
territories and settlements dependent thereupon, and for that purpose
to constitute within our said colony and its dependencies one Supremo
Court of Justice, to be holden in the manner and form hereinafter
mentioned. NO'V know ye, that we of our special grace, certain know-
ledge, and mere motion, have thought fit to grant, direct, order, and
appoint, and by these presents do accordingly for us, our heírs and suc-
cessors, grant, direct, order, and appoint, that there shaIl be within our
said colony of the Cape of Good Hopo a Court, which shall be called
"The Supreme Court of the Colony of the Cape oí Good Hope." And
we do hereby create, erect, and constitute the said Supreme Court to be
a Court of Record. And 'Ve do further wiII, ordaín, and appoint, that
the said Supreme Court of the colony of the Cape of Good Hope shaIl
consist of and be holden by and before one Chief Justice and two Puisne
J udges, and that the said Chief J ustíce shall be called and known by the
name and style of "The Chief Justice of the Colony of the Cape of
Good Hope i" and which saíd Chief Justice and Puisne Judges shall
be rcspectively barristers in England or Ireland, or advocates admitted to
practise in our Courts of Session of ScotIand, or in the said Supreme
Court. And which saíd Chief Justice and Puisne Judges shall {roro




476 CAPE OF GOOD HOPE-CHARTER OF JUSTICE.
time to time be nominated and appointed to such their officesby us, our
hcirs and successors, by letters-patent under the public seal of the sald
colony, to be issued in pursuance of any warrants or warrant, to bc from
time to time for that purpose granted by us, our heirs and successors,
under our or their sign manual. And we do hereby declare, ordain, and
grant, that upon the death, resignation, siekness, or ineapacity of the said
Chief J ustice or any of the said Puisne J udges; or in thc case of the
absence of any of them from the said colony, or in case of any such sus-
pension from offiee as hereinafter mentioned, of any such Chief J ustice
or Puisne Judge, it shall and may be lawful to and for the Governor of
our said colony for the time being, by letters-patent, to be by him for
that pnrpose made and íssued under the public seal of the said colony, to
nominate and appoint sorne fit and proper person or persons to act as aud
in the place and stead of any such Chief J udge or Puisne Judge so
dying or resigning, or labouring under such sickness or íncapacity as
aforesaid; or being so absent as'aforesaid from the said colony, or being
so suspended, until the vaeaney or vacancies so creatcd by any sueh death
or resignation, or sickness, 01' ineapaeity, or absenee, or suspension, shall
be supplied by a new appointment, to be made in manner aforesaid by
us, our heirs and successors, or until the Chief J ustice or Puísne, J udge
so becoming sick, or incapable, 01' being absent, or suspended as afore-
said, shall resume such bis office, and enter into the discharge of the
duties tbereof. And we do further will, ordain, and grant, that the said
Chief J ustice and Puisne J udges sball hold such their offieesduring their
good behaviour. Provided nevertheless, that it shall and may be lawful
for the Governor of our said eolony for the time being, by any order or
orders to be by him for that purpose made and issued under the public
seal of the said colony, with the advice of the executive council of go-
vernment of the said colony, or thc majar part of them, upon proof of
the misconduet of any such Chief J ustice or Puisne J udge as aforesaid,
to suspend him from sueh his offiee and from the diseharge of the duties
thereof, provided that in every such case thc said Governor shall imme-
diatcly report for our information, through one of our Principal Secre-
taries of State, the grounds and causes of such suspension. And we do
bereby reserve to us, our heirs and successors, full power and authority
to confirm or disallow such suspension from office as aforesaid of any
such Chief Justice or Puisne Judge. And we do hereby further reserve
to us, our heirs and successors, full power and authority, upon sufficient
proof to our or their satisfaction of any such misconduct, to remove and
displace any such Chicf J ustice or Puisne J udge from such his office. And
we do hereby give and grant to our suld Chief J ustice for the time being
rank and precedenee above and before all Olll' subjeets whomsoever within
the said colony of the Cape of Good Hopc and the territories and places
dependent thercupon, cxcepting the Governor or Lieutenant-Govcrnor for




CAPE OF GOOD HOPE-CHARTER OF JUSTICE. 477
the time being thereof, and tbe Commander-in-chief of our forces for the
time being within the sanie, and excepting all such persons as by law 01'
usage in England take place before our Chief Justíce of our Court of
King's Beneh. And we do hereby give and grant to the said Puisne
J udges for the time being rank and prccedence within our said colony of
the Cape of Good Hope and the territories and places dependent there-
upon, next after our said Chief J ustice of our said colony for the time
bcing. And we do hereby declare, that tho said Puisne Judges shall
take rank and preceelence between themselves aceording to the priority of
their appointments respectively, And we do further grant, ordain, and
appoint, that the said Supreme Court of the colony of the Cape of Good
Hope shall have and use, as occasionmay require, a seal bearing a device
and impression of our royal arms within an exergue or label surrounding
the same, with this inscription, "'fhe Sea! of the Supreme Court of the
Cape of Good Hope.' And we do hereby ordain, grant, and appoint, that
the said sea! shall be delivered to and shall be kept in the custody of the
said Chief Justice, with fullliberty to deliver the same to any Puisne Judge
of the said court for any temporary purpose i and in case of vaeancy of 01'
suspcnsion from the ofiice of Chief J ustice, the same shall be delivered
over to and kept in the custody of such person as shall be appointed by the
said Governor of our said colony to act as and in the place and stead of
the said Chief Justice, And we do further grant, ordaín, and declare,
that the said Chief J ustice and the said Puisne .Tudges, so long as they
shall hold their offices respectively, shall be entitled to have and receive
such salaries as shall be granted to them by us, our heirs and successors,
whích salaries shall be in lieu of all fees of office, perquisites, emolu-
ments, and advantages whatsoever; and that no fee of offiee, perquisite,
emolument, 01' advantages other than ami except the said salaries shall
be acccpted, received, 01' taken byany such Chief Justice 01' Puisne Judge
on any account 01' any pretence whatsoever. And we do further ordain,
appoint, and declare, that no such Chief Justice 01' Puisne J udge as afore-
said, shall accept, take, 01' perform any other office, place of profit or
emolument within our said colony; and that the acceptance of any such
other office or place as aforesaid, shall actually vacate and avoid such his
office of Chief Justice or Puisne Judge, as the case may be, and the
sa!ary thereof shall cease accordingly from the time of the acceptance of
any such other office or place. And we do hereby ordaín, appoint, and
declare, that there shall be attached and belong to the said court the fol-
lowing officers (that is to say), one officer to be styled the Registrar 01'
Prothonotary and Keeper of Records of the said Court, and one other
officer to be styled the Master thereof, together with such and so many
other officers as the Chief J ustice of the said court for the time being
shall from time to time appear to be necessary for the adminístration of
justice, and thc due executíon of the powers aUQ authorities which are




478 CAPE OF GOOD HOPE-CHARTER OF .JUSTICE.
granted and committed to the said court by these our letters-patent.
Provided nevertheless, that no new office shall be created in the said
court, unless the Governor of the said colony or Lieutenant-Governor for
the time being shall fírst signify his approbation thereof to the said Chief
J ustice for the time being in writing under the hand of such Governor or
Lieutenant-Governor. And we do further ordain and direct, that all
persons who shall and may be appointed to the offices of Registrar or
Prothonotary and Keeper of Records or Master of the said court, aud
that aIl persons who shall be appoiuted in the said court to any offices of
which the duties shall correspoud to those performed by the Master or
Prothonotary of any 01' either of our Courts of Record at Westminster,
shall be so appointed by us, our heirs and successors, by warrant under
our or theír royal sign manual; and that aIl persons who shall and may
be appointed to any other office within the saíd Supreme Court, shall be
so appointed by the Governor for the time being of the said colony.
And we do further direct and appoint, that the said several officers of
the said court other than and except the said Chief Justice and Puisne
J udges thereof, shall hold their respective offlces therein during the
pleasure of us, our heirs and successors. And we do hereby authorize
and empower the said Supreme Court of the colony of the Cape of Good
Hope to approve, admit, and enrol such persons as shall have been ad-
mitted as barristers in England or Ireland, or advocates in the Court of
Session of Sootland, 01' to the degree of doctor of laws at our Uníver-
sities of Oxford, Cambridge, or Dublin, to act as barristers or advoeates
in our said Supreme Court. And we do further authorize and empower
the said Supreme Court to admit any persons to practisc as barristers and
advocates therein, who previously to the promulgation oc'thesc presents
within the said colony have been actuaIly admitted to practise as advo-
cates in the Supreme Court of J ustice heretofore existing within the
same, And we do further authorize and empower the said Supreme
Court to approve, admit, and enrol, any persons being attornies or solici-
tors of any of our Courts of Record at Westminster 01' Dublin, 01' being
proctors admitted to practíse in any Ecclesiastical Court in England 01'
Ireland, 01' being writers to the signet in Scotland, 01' being now entitled
to practise as proctors 01' notaries in the said Supreme Court of Justice
heretofore existing within the said colony,to act as attornies, solicitors, or
proctors, in the said Supreme Court of the colony of the Cape of Good
Hope. And we do further authorize our said Supremo Court to approve,
admit, and enrol, as such attornies, solicitors, or proctors as aforesaid, such
and so many persons as may be instrncted within our said colony in the
knowledge and practice of the law, by any barrister, advocate, attorney,
solicitor, or proctor, dulyadmitted to practise in the said court, and which
persons shall be so approved, admitted, and enrolled according to and in
pursuance of any general rule or rules of court to be for that purposa




CAPE OF GOOD HOPE-CHARTER OF JUSTICE. 479
made in manner hereinafter directed. And we do orJain and declare,
that persons approved, admitted, and enrolled as aforesaid, shall be
and they are bereby authorized to appear and plead and act for the
suitors of the said Supreme Court, subject always to be removed by the
said Supreme Court from thcir station therein upon reasonable cause.
And we do furtber ordain, that no person 01' persons whatsoever not so
approved, admitted and enrolled as aforesaid, shall be allowed to appear,
plead, 01' act in the said Supreme Court for 01' on behalf of any suítors
in the said court. Provided always, and we do further ordaín and de-
clare, that the functions and office of barristers and advocates shall not
be discharged in the said court by the attornies, solícitors, and proctors
thereof'; and that the functions and office of such attornies, solicitors,
and proctors, shall not be discharged by such barristers at law 01' advo-
cates. Provided nevertheless, and we do further declare our will to be,
that in case there shall not be a sufficientnumber of barristers and advo-
cates within the said eolonyeompetent and willing to act for the suitors of
the said court, the saíd court shall and is hereby authorized to admit
any of the attornies, solicitors, 01' proctors tbereof, to appear and aet as
barristers and advocates during tbe time of such insufficieney only;
and in case there shall not be a sufficient number of attornies, solicitors,
and proctors within the said colony competent and willing to appear and
aet in that capacity for the suitors of the said court, tbe said Supreme
Court sball and is hereby authorized to admit any of such barristers 01'
advocates to practise and aet in the capaeity of attornies, solicitors, and
proetors, during the time of such insufficiencyonly. And we ordain
and declare, that the Govemor for the time being of the said colony of
the Cape of Good Hope shaIl, on the first Monday in the month of Ja-
nuary in each year, by warrant under his hand and seal, nominate and
appoint sorne lit and proper person to act as and be the Sheriff for our
said eolony of the Cape of Good Hope and íts dependenciesfor the year
ensuíng, whieh Sheriff, when appoínted, shall, as seon as conveniently
may be, and before he sha11 enter upon his said office, take an oath faith-
fully to exeeute the duties thereof, and the oath of allegianee before the
said Governor, who is hereby authorized to administer the same, And
we do direet, that the said Sheriff shall continue in such his office during
the space of one whole year, to be computed from the said first Monday
in the month of January, and until another shall be appointed and
swom into the said office; and in case such Sheriff shall die in 01' re-
sign his said office, 01' depart from our said colony of the Cape of Good
Hope c1uring the period of hís office, then another person shall as soon
as conveniently may be after the death, resignation, 01' departure of such
Sheriff, be in like manner appointed and swom as aforesaic1, and shall
continue in his office for the remainder of the year, and until another
Sherií]' shall be duly appointed and sworn into the said office. And we




480 CAPE OF GOOD HOPE-CHARTER OF JUSTICE.
do further order, direct, and appoint, that thc said Sheriff for the time
heing shall, by himself or his suffieient deputies, to be by him appointed
and duly authorized under his hand and seal, and for whom he shall be
responsible during his continuanee in such office, execute, and the saíd
Sheriffby himself and hís said deputies are hereby authorized to exeeute,
all the sentenees, decrees, judgments, writs, summonses, rules,orders,
warrants, commands, and proeesses of the said Supreme Court of the
Cape of Good Hope, or of the Cireuit Courts of the said colony hereafter
mentioned; and shall make a rcturn of the same, together with the
manner of the exeeution thereof, to the Supremo Court of the Cape of
Good Hope, or to the said Circuit Courts, as the case may be; and shall
receive and detain in príson all such persons as shal! be committed to
the custody of such Sheriff by the Supreme Court of the Cape of Good
Hope, or by the said Circuit Courts, or by the Chief Justice, or by any
other judge of the said courts, ,And we do further authorize our Gover-
nor for the time being of the said colony of the Cape of Good Hope in
each suceeeding year to re-appoint the same person to fill the office of
sheriff, if it shall appear to our said Governor expedient so to do. Pro-
vided neverthcless, and we do hereby require our said Governor in the
seleetion ofany person to fill the said offiee of Sheriff of the CapeofGood
Hope, to conform himself to such directions as may from time to time
be given in that behalf by us, our heirs and successors, through one of
our or their Principal Secretarias of State. And we do furtber direct,
ordain, and appoint, that whenever the said Supreme Court of the Cape
of Good Hope, or the Cireuit Courts hereinafter mentioned, shall direct
or award any proeess against the said Sheriff, or award al1Y proeess in
any cause, matter, or thing, wherein the said sheriff, on account of his
being related to the parties or any of them, 01' by reason of any good
cause of chal!enge which would be allowed against any Sheriff in Eng-
land, eannot or ought not by law to exeeute the same, in every sueh case
the said Supreme Court of the eolony of thé Cape of Good Hope, or the
saíd Cireuit Courts, as the case may be, shall name and appoint sorne
other fit person to exeeute and return the same; and the said proeess
shall be direeted to the person so to be named for that purpose, and the
cause of sucb special proceedings shall be registered and entered on the
records of the said courts respectively. And we do bereby further ordain,
direct, and appoint, that the said Supreme Court of the eolony of the Cape
of Good Hope shall have cognizance of al! pleas and jurisdiction in all
causes whether civil, criminal, or mixed, arising within the said eolony,
with jurisdietion over our subjects and all otherpersons whomsoever
residing and being within the said eolony, in as full and ample manner
and to aU intenta and purposes as the Supremo Court of J ustíce now
existing within the said eolony now hath or can lawfully exereise the
same. And we do further give and grant to the said Supreme Court of




CAPE OF GOOD HOPE-CHARTER OF JUSTICE. 481
the colony of the Cape of Good Hope fuH powcr, authority, and jurís-
diction, to apply, judge, and determine upon, and according to the Iaws
now in force within our said colony, and all such other laws as sha1l at
any time hereafter be made and established for the peace, order, and
government thereof by us, our heirs and successors, with the advice and
consent of Parliament, 01' in our 01' their privy council, 01' by the Gover-
nor of the said colony, by the advice of the legislative council of govem··
ment thereof. And we do further give and grant to the said Supreme
Court ful! powcr, jurisdiction, and authority, to review the proceedings of
al! inferior courts of justice within our said colony, and if necessary to
set aside 01' correct the same; and in the exercise of such jurisdietion,
powers, and authorities as aforesaid, our will and pleasure is, that the
pleadings and proeeedings of the said Supreme Court and the said Circuit
Courts shaIl be carried on, and the sentences, decrees, judgments, and
orders thereof, pronounced and declared in open court, and not other-
wise, and that the several pleadings and proceedings of the said courts
shall be in the English language; and that in all criminal cases the
witnesses against and for any accused person 01' persons shall deliver
their evidence vivá voce and in open court, And we do further will,
dírect, and appoint, that for the conduct and decision of all civil suits,
actions, and ' causes depending before the said Supreme Court, and of
a1l questions, matters, and thíngs arising in the course of any such civil
suits, actions, 01' causes, any two of the judges of the said Supreme Court
shall form a quorum, and shall be competent to execute all and every the
powers, jurisdictions, and authorities hereby granted 10 and vested in the
said Supreme Court; and that in the event of any dlfference of opinion
bctween such two judges, the decision of the said court shall in any such
case be suspended until all the three judges shall be present, and the
decision of such three judges when unanimous, 01' of the majority of such
three judges in case of any dífference of opinion, shall in all cases be
deemed and taken to be the decision of the whole court, And we do
further ordaín, direct, and appoint, that in any criminal case depending
before the said Supreme Court ths trial of the person 01' persons aecused
shall be before any one 01' more of the judges of the saíd court and
ajury(5) of nine men, who shall concur in everyverdíct 10 be given on


(5) Tbe following was tbe jury
Iaw of tbe colonyunder an ordinanee
issued in pursuance of tbe charter of
1827.


"Ordinanee of his Honour the
Lieutenant-General in Council for
determining the qualifieation of per-
sons to serveon grand and petit ju-
ries, and the modeof makingout and


returning lisis of the sama," Passed
February 4, 1828.


Sect, 1. Whereasby His MostGra·
cious Majesty's charter, bearing dale
the 24tb day of August, 1827, it is
ordained, direeted, and appointed,
that in any criminal cause depending
before the SupremeCourt of this co-
lony, tbe trial of the party 01' parties


! I




482 CAPE OF GOOD HOPE-CHAnTER OF JUSTICE.
the trial of any sueh accused party or parties j and every such verdiet
shall be delivered in open court by the mouth of the foreman of every
such jury, and shall be thereupon recorded and read over to such jury
before they are discharged from attendance on the said court, Provided
nevertheless, and we do further declare and direct, that no person within
the said colony who muy be otherwise competent to serve on any such
jury as aforesaid, shall be or be taken to be incompetent to serve on such


accused shaU be before one 01' more
of tbe judges of tbe said court and
a jury of nine men, who shall concur
in every verdict to be given on thc
trial of any such accused party 01'
partíes. And whereas by the said
chárter it is also directed, that all
crimes and offencescognizable in thc
Circuit Court of this colony, shall be
inquired of, heard, and determined by
the Circuit Judge and a jury of nine
men, unless upon the trial of any
crime 01' offencebefore any of the S3 id
Circuit Courts nine good and lawful
men, being duIy summoned, sball not
appear to form a j ury, tben and in a11
such cases such trial shall be had
before tbe judge and any number of
the jury who shall appear, not being
less than six, who shall be sworn, and
sball have the same power as if the
usual number of nine had appearad:
now, therefore, in pursuance to the
powers and directions aforesaid in the
said charter contained, be it enacted
by his Honour the Lieutenant-Gover-
nnr in Council, that from and after
the passing of this ordinance, every
man, except as bereinafter exceptcd,
betweeen the ages of 21 and 60 years,
reslding within tbe colony and its de-
pendencies,who shall have the posses.
sion of any land situated within this
colony, held on perpetual quit-rent 01'
on loan, and for which he is liable to
pay an annual rent of not less than
one pound seventeen shillings and six-
pence sterling, 01' of freehold land of
tbe same annual value, 01' who shall
be liable to pay in Cape Town and
the district thereof a sum not less tban
twenty shillings sterling, and in any
and every other par! of this colony
a sum not less than- fifteen shillings
sterling for 01' on account of taxes
already imposedor hereafter to be im-
posed by any law or ordinance, shall
be qualified lInd shall be liable to


serve on juries in all criminal casls in
the Supreme and Circuit Courts, ~uch
cases being triable in the district re-
spectively in which every man so qua-
lifiedshall reside.


2. Provided always, and be it fur-
ther cnacted, that aH judges of the
Suprejae Court, all clergymen in holy
orders, all priests of the Roman Ca-
tholic faith, all persons licensed to
teach or preach in any eongregation
assembled for religious worship, all
attornies and proclors duIy admitted
by the Supreme Court 01' Court of
Vice-Admiralty, and actually practis-
ing, all officers of any conrts of supe-
rior 01' inferior jurisdiction, exercising
the duties of their respective offices,
all gaolers and keepers of houses of
correction, all persons duly admitted
to practise as physicians, surgeons, 01'
apothecaries, and actuaIly practising.
all otlicers in his Majesty's army and
navy on fuIl pay or in active employ-
ment, all persons em~loyed in the
civil service of his Majesty's govern-
ment in this colony, and all field-cor-
neis, sherifís' officers, conslables and
clerks, shaLI be and are hereby abso-
lutely freed and excepled from being
relnrned and from serving upon any
jury whatsoever.


7. And be it further enacted, that
no person shall be put on trial on any
inrlictment at any criminal session of
the Supreme Court, unless the bill
shall first have been presented to a
grand jury, and shall have been re-
turned by them a true bill,


8. And be it further enacted, that
every such grand jury shall consist of
not more (han seventeen men, and not
less than nine men, belween the ages
of 21 and 60 years, of goorl famo and
condition, possessing property in Iand
01' houses within Cape Town of (he
value of ,E2000 sterling.




CAPE OF GOOD HOPE-CHARTER OF JUSTICE. 483
jury by reason of his ignorance 01' supposed ignorance of the English
language. And we do further ordain and direct, that all the duties
heretofore performcd by the Orphan Chamber within our said coIony,
shaIl henceforth be performed by the Master for the time bcing of the
said Supreme Court, and tbat the said Orphan Chamber shall be and the
same is hereby abolished. And we do furthcr direct and appoint, that
the said Suprema Court sha1l at a1l times be holden at Cape Town in
our said colony. And we do further ordain and direct, that it shall and
may be lawfuI for the Governor of the said colonyby auy proolamation
01' proclamations, to be by him for that purpose issued, to apportion and
divide the said colony into two 01' more dístrícts, and to fix and ascertain
the boundarles and limits of every such distríct, and such boundaries and
limits from time to time to alter as occasion may require. Provided
always, that such apportionment of the said colony into such districts as
aforeeaíd be made in such manner as tosuchGovemor may appear to
be best adapted for cnabling the inhabítants of the said colony to resort
wíth ease and convenience to the Circuit Courts to be thereín established
as after mentioned. And wc do further grant, ordain, and appoint, that
courts to be called Circuit Courts shaIl be holden twice at the least in
each year in each of thc dístrícts into which the said colony may be so
divided as aforesaid, and eaoh of the said Circuit Courts shall be holden
by tho Chíef J ustice, 01' by one of the said Puisne J udges of the said
Supreme Court of the colony of theCape of Good Hope, at such times
and at such one 01' more place 01' pIaces within each of the said districts as
the Governor of the colony of the Cape of Good Hope shall from time to
time direct and appoiut. And wedofurther direct and appoint, that each of
the said Circuit Courts shall be respectively Courts of Record, and shall,
within the district in which it may be holden, have and exercise all such
and the same jurisdiction, powers, ,and authority as is hereby vested in
the said Supreme Court of the colony of the Cape of Good Hope
throughout the whole of the said colopy; and that all crimes and of-
fences cognizable in the said Circuit Courts shall be inquired óf, heard,
and determined by the said Circuit Judge and a jury of nine men, and
that the verdict of sueh jury shall be pronounced and recorded in the
manner before directed respecting the verdicts of juries to be given in
the said Supreme Court; and that the provision hereinbefore contained
respectíng the ignorance 01' supposed ignorance of the English language
of any person otherwise competent to serve on any jury in the said Su-
p~me Court, shall also extend and apply to persone serving 01' who may
b.p required to serve as jurors in the saíd Circuit Courts 01' any of them,
Províded nevertheless, and we do further ordain and direct, that if upon
the trial of any crime 01' offence before any of the saíd Círcuít Courts
nine good and lawful men, being duly summoned, shall not appear to
forro a jury, then and in sil such cases such tria! shall be had befare the


J I 2




481< CAPE OF GOOD HOPE-CHARTER OF JUSTICE.
Circuit Judge and any number of the jury who sha11 appear, not being
less than six, who sha11 be sworn and have the same power as if the fu11
number of nine had appeared. Provided also, and we do further direct
and appoint, that a11 civil suits 01' actions depending in any of the said
Circuit Courts shaIl be tried and decided by the judge of such court alone
and without a jury; and that in a11 cases where the sum 01' matter at
issue in any such suit 01' action sha11 exceed 01' be of the value of more
than one hundred pounds sterling British money, the judge of the said
court respectively shaIl cause the evidence on every such hearing 01' triay
as aforesaid to be taken down in writing by the cIerk 01' other prop,ér
officer in open court in the presence of the witnesses respectivcIy giving
the same, and the evidence so taken s11a11 be entered upon the proceed-
ings of the said courts and be of record; and in every case in which any
appeal shall be made and allowed under the provisions of this our charter
from any judgmcnt of the said Circuit Courts, copies of a11 documenta
and papers whieh sha11 have been produced and given in evidence shall
be certified and transmitted by the said cIerk 01' other proper officeras
authentic, and also copies of any documents and papers which shaIl have
been produced and tendered in evidence and rejected, shall, if rcquíred
by the party producíng the same, be in like manner authentícated and
marked by such offlcer as aforesaid as rejected, in order that a1l such
copies may be annexed to the record as part thereof in case of appeal.
And we do further direct and declare, that it shaIl be lawful for the
judges of the .said Circuit Court respectively, on the application of either
of the parties, plaintiff 01' defendant, at 01' before the trial of any civil
suit 01' action commenced in the said Circuit Courts respectivcly, to
permit the evidence on such trial to be recorded and certified as afore-
said, although the sum 01' matter at issue may be less than one hundred
pounds sterling, provided that it shall be made to appear to such judge
that such judgment, decree, order, 01' sentence which may be given,
made, 01' pronounced in such suit 01' action may be of such ímportance
as to render it proper that an appeal should be permitted; and if after
giving 01' pronouncing such judgment, decree, 01' order, the saíd judge
shaIl be of opinion that such judgment, decree, order, 01' sentenee is of
sueh importance as to make it proper that an appeal should be per-
mitted, it shall be lawful for the said j udge to a110w either of the said
parties, plaintiff 01' defendant, to appeal to the said Supreme Court in
like manner and under and subject to the like rules and regulatlons
as in and by this our chárter are directed in other cases of appeal
from the said Circuit Courts, And we do further direct and appoint,
that it shall be lawful for the plaintiff 01' plaintiffs, defendant 01' deferid-
ants, against whom any sentence, jndgment, or decree 01' order of the
said Circuit Courts respectively shall be given, for 01' in respect of any
sum 01' matter at issue aboye 01' exceeding the value of one hundred




CAPE OF GOOD HOPE-CHARTER OF JUSTICE. 485
pounds sterling, to appeal therefrom to the said Suprema Court; and
the party 01' parties appealing from such sentence, judgment, decree, 01'
order, shall within fourteen days from the passíng thereof give notice to
the adverse party 01' parties of sueh appeal, and within fourteen days
from and after such sentenee, judgment, decree, 01' order, enter into
sufficientsecurity, 10 be approved by the judge of the said Circuit Courts
respectively, to satisfy and perform the said judgment, decree, 01' order,
in case the same shalI be affirmed 01' the appeal dismissed, together with
such further costs as shaIl be awarded thereon; and in all cases of appeal
where notice shall be given and seeurity perfected as aforesaid, execution
shall be stayed, and not otherwise; and the said Supreme Court shall and
may inquire into, hear, and de~ide al! questions whether of law 01' fact
arising upon any such appeal, but shall not admit 01' receive any evideuce
which was not tendered to the Circuit Court from which such appeal
may be brought on the hearing or trial of any such suit 01' action
therein. And we do further direct and appoint, that as often as any
aetion 01' suit shalI be brought in the Supremo Court 01' in either of the
said Circuir Courts respectively, and it shall be made to appenr to the
court before which such action 01' suit may be pcnding, that sach
action may be more convcnicntly heard 01' determined either in the
said SupremeComt 01' in some other of the said Circuit Courts, it shal!
be lawful for such court to permit and allow such action 01' suit to be
removed to such other court, and such allowance shall be certified by
the judge, together with the process and proceedings in such action 01'
suit, to the court into which such action 01' suit shaUbe intended to he
removed, and thereupon it shall be lawful for sueh last-mentioned court
and sueh court ishereby required to proeeed in such aetion 01' suit in like
manner as if the same had been originally eommenced and prosecuted in
sueh last-mentioned eourt. And we do further ordain and direct, that
no judgment 01' sentence, either of the said Supreme Court 01' of any
such Cireuit Court as aforesaid, in any 'Criminal case whereby any person
shall be condemned to death, 01' transportation, 01' banishment from the
said colony, shall be carried into exeeution unti! a report of aU the pro-
ceedings upon any sueh trial hath been laid before 01' transmitted to the
Governor of the said eolony by the Chief Justiee 01' Puisne Judge pre-
siding at any sueh trial, nor until such Governor shall have authorized


}lnd approved the exeeution of sueh sentence. And we do further grant,
/ ordain, direet, and appoint, that it shall and may be lawfu! for the said


Supreme Court, by any rules 01' orders of eourt to be by them from
time to time for that purpose made and published, to frame, eonstitute,
and establish such rules, orders, and regulations as to them shaIl seem
mect, touching and concerning thc time and place of holding the said
Supreme Court and touching the forms and manner of proceeding to be
observed in the said Supreme Court and Circuit Courts respeetively,




486 CAPE üF GOOD IIOPE-eHARTER OF JUSTICE.
and the practice and pleadings upon al! actions, suits, and other mat-
ters, both civil and criminal, indictments and informations to be
therein brought, the appointing of commissioners to take bail and
examine witnesses, tbe examination of witnesses de bene esse, and
allowing tbe same as evidence, the proceedings of the sheriff and other
ministerial officers of the said courts respectively, the process of the
said courts and the mode of executing the same, the summoning, em-
pannelling, and challenging of jurors, the admission of barristers, ad vo-
cates, attornies, and solicitors, and proctors, the fees, poundage, or per-
quisites to be lawfulIy demanded by and payable to any offícers, attor-
nies, solicitors, and proctors, in the said courts respectively, and touching
and concerning al! such other matters and things necessary for the proper
conduct and dispatch of business in the said Suprcme and Circuit
Courts respectively, and al! such rules, orders, and regulations, from
time to time to revoke, alter, amend, 01' renew, as oeeasion may require.
Provided always, that no sueh rules, orders, and regulations shall be
repugnant to this our charter and that the same shall be so framed as
to promote, as far as may be, economy and oxpeditíon in the dispatch
of business of the said Supreme Court and Circuit Courts respecti vely.
And that all such rules and forms of practice, process, and proceeding,
shall, so far as the circumstances of the said colony may permit, be
framed with reference to the corresponding rules and forms in use in
our Courts of Record at Westminster, and that the same be drawn up
in plain, succínct, and compendious terms,avoiding aU unnecessary
repetitions and obscurity, and promulgated in the most public and
authentic manner in the said colony for three months at least before the
same shall operate and take effect, Provided always that all such rules,
orders, and regulations shall forthwith be transmitted to us, our heirs,
and successors, under the seal of the said court, for our or their appro-
bation or disallowance. And whereas it may be expedient and neces-
sary to make provision respecting the qualifications of jurors to serve in
the said courts, and the. mode of enforcing tbe attendance of such jurors,
and it may also be expedient and neeessary to make provision for the ex-
tension of trial by jury in the said Supreme Court or Circuit Courts in
civil cases: Now we do furtber ordain, direet, and appoint, that it shall
and may be lawful for the Governar for the time being of our said co-
lony, with the advice of the Legislative Couneil of Government thereof,
to make and establish all sueh wholesome laws, statutes, and ordinances,
as to them may seem meet, respecting the matters aforesaid, which laws,
statutes, and ordinances shall forthwith be transmitted to us for our
approbation or disallowance in the manner prescríbed by law respecting
all other the Iaws, statutes, and ordinances made 01' to be made by the
said Governor, wíth the adviee of the said Councíl. And whereas it
!nllf be expedient to establish within our said eolony Courts of Request




CAPE OF GOOD núPE-CHAltTER OF JUSTICE. 487
and other courls having jurisdiction in civil cases of sma1l amount or
value, and in cases of crimes or offences not punishable by death or
transportation: Now we do hereby authorize and empower the Gover-
nor for the time being of our said colon y, with the advice of the Legis-
lative Council of Government thereof, by any laws and ordinanccs to be
from time to time made for that purpose, to erect, constitute, and esta-
blish all such Courts of Request and other courts having jurisdiction
in civil ancl criminal cases within our said colony: Providecl that the
jurisdiction of such civil courts slrall not be extended to any case
wherein the sum Ot' matter in dispute shall exceed the amount or value
of .f40 (6) sterling money, or whercin the tille to any lands or tene-
mcnts, or any fee, duty, or office, may be in question, or whereby rights
in future may be bound. And provided also, that the jurisdiction of
such courts in criminal cases shall not be extended to any case wherein
any person may be accused of any crime punishable by death, transport-
ation, or banishment from the said colony, And we do hereby authorize
and empower the said Governor, by and with the advice of the saicl
Chief Justice and Puisne Judges of the said Supremo Court for the
time being, to make, ordain, and establish a1l necessary rules, orders, or
regulations respecting the manner and form of proceeding in any such
last-mentioned courts, and respecting the locallimils within which the
jurisdiction thereof is to be exercised, and respecting the manner and
form of carrying the judgments and orders of such courts iuto execu-
tion, and all such other rules, orders, and regulations as may be neces-
sary for giving full and perfect effect to the [urisdiction of the said
courts. And we do hereby grant, ordain, and direct, that it shall and
may be lawful for any person 01' persons, being a party or parties to
any civil suit or action depending in the said Supreme Court of the
colony of the Cape of Good Hope, to appeal to us, our heirs and suc-
cessors, in our or their Privy Council, against any final judgment,.
decree, or sentence of the said court, oiagainst any rule or order made
in any such civil suit or action, having the effect of a final or definitive
sentence, and which appeals sha1l be made, subject to the rules, regula-
tions, and limitations following, that is to say, in case uuy such judg-


(6) Under the charter of 1827
District Courts had been appointed,
the jurlsdíction of which did nol ex-
tend in the Cape District to cases
where more than .i20 were in dispute,
nor in othe places to a larger amount
than .i1O. Whoever,in the Cape Dls-
lricl, had a claim on another for more
Iban .i20, was obliged to apply toan
attorney at Ieast three or four days
befare the matter could be brought


into court: If his cIaim was founded
on a note or bond already due, no
witnesses were required, and it would
have been sufficlent to submit the do-
cuuient lo his 'attorney, who handed
it to an advocate, by whom it was
submitted to the court on Tuesday,
the day appointed for such claims, for
provisional judgment, which was im-
mediately granted if no one appeared
in defence.




488 CAPE OF GOOD HOPE-CHARTER OF JUSTICE.
ment, decree, order, 01' sentence shall be given.or pronounced for 01' in
respect of any sum 01' matter at issue aboye the amount 01' value of
.f500 sterling, 01' in case such judgment, decree, order, 01' sentence sball
involve directIy 01' indirectly any claim, demand, 01' question to 01'
respecting property 01' any civil right amounting to 01' of the value of
/]500 sterling, the person 01' persons feeling aggrieved by any such judg-
ment, decree, order, 01' sentence of the Supreme Court may, within
fourteen days next after the same shall have been pronounced, made,
01' given, apply to the said Supreme Court, by petition, for leave
to appeal therefrom to us, our heirs, and succcssors, in our 01' their Privy
Council. And in case' such leave lo appeal shall be prayed by the
parly 01' parties who is 01' are directed to pay any sum of money 01' per-
form any duty, Ihe said Supreme Court shall and is hereby empowered
either to direct that the judgment, decree, order, 01' sentence appealed
from shall be carried into execution, 01' that execution thereof shall be
suspended pending the said appeal, as to the said court may in each
case appear to be most consistent with real and substantial justice; and
in case the said Supreme Court shall direct such judgrnent, decree,
order, 01' scntenceto be carried into execution, the person 01' pcrsons in
whose favour the same shall be given, shall, before the execution thereof,
enter into good and sufficieIÍt security, to be approved by the said Su-
preme Court, for the due performance of such judgment 01' order, as we,
our heirs and successors, shall think fit to make thereu pon; 01' in case
the said Supreme Court shall direct the execution of any judgment, de-
cree, order, 01' sentence to be suspended pending the said appeal, the
person 01' persons against whom the same shall have been given shaU,
in like manner and before any order for the suspension of any such
execution is made, enter into good and sufficient security, to be approved
by the said Supreme Court, for the due performance of such judgment
01' order, as we, our heirs and succcssors, shall think fit lo make there-
upon. And in al! cases we will and require that sccurity shall also be
given by the party or parties appellant, to the satisfaction of the Su-
preme Court, for the prosecution of the appeal and for the payment of
all such costs as may be awarded by us, our heirs and successors, to
the party 01' parties respondent; and if such last-mentioned security
shall be ente red into within three months from the date of such petitions
for leave to appeal, then, and not otherwise, the saíd Supremo Court
shall aUow the appeal, and Ihe party 01' parties appellant shall beat
liberty to prefer and prosecute his, her, 01' their appeal to us, Out' heirs,
and successors, in our 01' their Privy Council, in such manner and
under such rules as are observed in appeals made lo us from our plan.
tal ions 01' colonies, And we do hereby reserve to ourselves, our heirs
and successors, in our 01' their Privy Councíl, full power and authority
upon the humble petition, at any time, of any person 01' persons ag-




CAPE OF GOOD HOPE-CHARTER OF JUSTICE. 489
grieved by any judgment 01' determination of the said Supreme Court,
to admit his, her, or their appeal therefrorn upon sueh other terms and
upon and subjeet to such other limitations, restrictions, and regulations,
as we or they shall think fit, and to reverse, eorrect, or vary such jndg-
ment 01' determination as to us or them shall seem meet. And it is our
fnrther will and pleasure that in all cases of appeal allowed by the said
Supreme Court, or by us, our heirs and successors, the said conrt shall
certify and transmit to us, our heirs and succcssors, in our 01' their
Privy Council, a true and exact ~opy of al! evidence, proceedings, judg-
ments, decrees, and orders had or made in such causes appealed, so far
as the same have relation to the matter of appeal, such copies to be cer-
tified under the seal of the said court. And we do further direct and
ordain, that the said Supreme Court shall in al! cases of appeal to us,
our heirs and suceessors, conform to and execute such judgments and
orders as we sha11 think fit to make in the premises, in such manner as
any original judgment, decree, 01' decretal order, 01' rule, by the said
Suprcme Court of the colony of the Cape 0'[ Good IIope could 01' might
have been executed. And we hereby strictly charge and eommand all
Governors, Cornmanders, Magistrates, Ministers, civil and military, and
nll our liege subjects, within and belonging to the said colony, that in
execution of the several powers, jurisdictions, and authorities hereby
granted, made, given, 01' created, they be uiding and assisting and
obcdient in all things, as they will answcr the contrary at their peril,
Provided always, that nothing in these presents contained, 01' any act
which shall be done under the authority thereof, shaIl extend 01' be -con-
strued to extend to prevent us, our heirs and successors, from repealing
these presents 01' any part thereof, 01' from rnaking from time to time, as
occasion may rcquire, such further 01' other provisions by letters-patent
for the administration of justice, civil and criminal, within the said
colony and the places now 01' at any time hereafter to be annexed
thereto, as to us, our heirs and successors, sha11 seem lit, in as full and
ample a manner as if these presents had not been made, these presents
01' any thing contained to the contrary therein in anywise notwithstand-
ing, And whereas our royal brother and predecessor, his late Majesty
King George the Fourth, by letters-patent under the great seal of the
United Kingdom aforesaid, bearing date at Westminster the twenty-
fourth day of August, in the eighth year of his reign, did grant, direct,
order, and appoint that there should be witbin the eolony of the Cape
of Good Hope a court whieh should be cal!ed the Supreme Court of
the Colony of the Cape of Good Hopo, and it was thereby, amongst
other things, provided that nofhing therein contained should extend 01'
he construed to extend to prevent us, OUI' heirs, and successors from
rcpealing the said letters-patent 01' any part thereof, 01' from making
such further 01' other provision by Ietters-patent for the administration




490 CAPE OF GOOD HOPE-CHARTER OF JUSTICE.
of justice, civil and criminal, within the said colony and the places then
or at any time thereafter to be annexed thereto, as to us, our heirs and
successors should seem fit, in as full and ample a manner as if the said
letters-patent had not been made, the said letters-patent or any thing
contained to the contrary therein in anywise notwithstanding. Now
we do hereby, in virtue and in pursuance of the powers so reserved to us
as aforesaid in and by the said letters-patent, repeal and revoke the
before-mentioned letters-patent and each and every part thereof: Pro-
vided neverthcless, that all decrees, judgments, and sentences, rules and
orders heretofore made by the courts established by, or by the judges
appointed under the said letters-patent, or by any or either of such courts
or judges, and that all general rules, orders, and regulations of court
made under and in pursuance thereof and that all proclamations issued
by any Governor of tbe said colony in virtue thereof, and that alllaws
and ordinances promulgated by the Governor of the said colony, with
the ad vice of the Council of Govcrnment thereof, for carrying the said
letters-patent or any part thereof into effect, shall to all intents and pur- ,
poses be as binding, conclusive, good, valid, and effectual as if these
presents had not been made. And we do further ordain and direct that
the Governor of our said colony of the Cape of Good IIope, upon the
arrival therein of these presents, shall by proclamation notify to the in-
habitants of the said colony the time when the courts hereby established
will be open, and as soon as the judges of the said Supremo Court
shall have assumed and ente red upon the exercise of their jurisdiction
therein, then and frorn thenceforth the Supreme Court of the colony of
the Cape of Good Hope and the Circuit Courts now established within
the same and the j urisdiction of the said courts respectively shall bc
absolutely abolished, cense, and determine, and every suit, action, com-
plaint, matter, 01' thing, civil 01' criminal, which shall be depending in
such last-mentioned courts respcctively, shalJ and may be proceeded
upon in the Suprema Court instituted under and by virtue of these
presents, or in either of the said Circuit Courts which shall and may
have jurisdiction within the district or place in the colony of the Cape
of Good Hope where such action or suit or other matter, civil or crimi-
nal, respectively was depending, and a11 proceedings which sha11 there-
after be had in such action or suit or other matter, civil or criminal,
respectively, shall be conducted in like manner as if such action or suit
or other matter, civil or criminal, had been originally commenced in one
or other of the said courts instituted under these prescnts, and all thc
récords, muniments, and proceedings whatsoever of and belonging to
the said Supreme Court and Circuit Courts established by the said
recited letters-patent, shall, from and immediately after the opening of
the said courts respeetively instituted by these presents, be delivered
over and deposited for safe custody in such of the said courts re-




CAPE OF eOOD lIOPE-CIIARTEn OF JUSTICE. 4,91
spectively instituted under these prescnts, as shall be found most con-
venient, and all parties concerned shall and may have recourse to the
said récords and proeeedings as to any other reeords 01' proeeedings of
the said courts respeetively. And we do hereby further declare and
direct, that during the absenee from our said eolony of the Cape of
Good lIope of the Governor thereof, 01' if there shall be no person com-
missioned by us, our heirs and successors, to be the Governor of our
said colony, then and in every su eh case all and every the powers
hereby granted to and vested in the Governor for the time being of the
said colony shall and may be executed byand vested in the Lieutenant-
Governor thereof, 01' the officer for the time being administering the
government thereof. In witness, &c. Witness, &c. the fourth day of
May, 1832.


By W rit of Privy Seal,




( 4·92 )


SIERRA LEüNE
WITII


THE SETTLEMENTS AT GAMBIA AND üN
THE GOLD COAST.


-


T HE first occupation of the colony of Sierra Leone is dated
as far back as 1787. In that year a tract of land upon the
península was ceded to His Majesty by the native chiefs,
for the purpose of affording an asylum to some Europeans
and Africans, who had been conveyed from England with
a view of forming a settlement upon this part of the coast.
This tract was clearly defined at the time of its grant to
the Sierra Leone Company in 1791. The peninsula, as
at present known, is bounded on the north by the river
Sierra Leone, on the south and west by the sea and Cal-
mont Creek, on the east by a line up the Calmont to the
Waterloo Creek, and down this last to the Bunce, which
is in fact part of the Sierra Leone river, These limits
comprehend a tract of about eighteen miles north to south,
and twelve east to west. The land is described as far
from fertile beyond the first season after clearing.


HISTORY AND CONSTITUTION.


The colony was at first settled by blacks who had come
to England at the cIose ofthe American war, and had been
provided for by being conveyed to Sierra Leone to make
a settlement there, This settlement was unfortunate.
The next was made by the N ova Scotian settlers in 1792.
They wcre inhabitants of the southern States of the
Union who had been employed in the royal army, and in
reward for their serviccs during the war were settled at its
cIose upon lands in N ova Scotia, The climate however
so ill agreed with them, that they gladly embraced the
offer of the company to convey them to Sierra Leone.




SIERRA I,EONE. 4·93
This settIement, however, was as unfortunate as the lasto
In ]800 the population of the colony was increased by
the accession of 550 maroon settlers. The maroon
population appears to have favourably settled here,
and to be on the increase in numbers, intelligence, and
prosperity. At the time of the commissioners' visit sorne
of the maroon inhabitants filled offices of trust in the co-
Iony. In ]819 sorne negroes of Barbados, who had been
concerned in an insurrectionary movement in that colony,
were brought as prisoners to Sierra Leone, and at first
kept un del' restraint, but subsequentIy they were reIeased,
and they appear to have become useful and industrious
settlers, The number originalIy brought was eighty-five.
01' these thirty-four are known to be living, twenty-six
dead, and the remaining twenty-five cannot be accounted
for, Some have found employment in trade, and many
have been sought after on account 01' their knowIedge of
tropical agricuIture. To these four classes have been
added the disbanded soldiers of sorne black regiments.
These men appear to have unwiseIy congregated about
the chief seat of the coIony, but the commissioners
seemed to think they wouId be a valuable addition to its
strength and importance. Great numbers of liberated
Africans have also been sent to the colony, but on the
whole it seems that these various additions have never
been able to keep up the popuIation at the amount to
which it was brought by their settlement in this colony.
This mixed population was, in ApriI, 1826, stated to be
about 13,OQO. The Maroons aIone seemed to be on the
increase.-Report of Commissioners of Inquiry into the
state of Sierra Leone, p. 1 to 12],.


Judicial and Civil Eetabliehments.
The institutions for the administration of government


and the dispensation of justice are founded on the pro-
visions of the chárter granted in 18012 to the Sierra Leone
Company. This charter was subsequentIy revised, and
(w.,ith sorne alterations) confirmed first in 1808, when the
settIement was transferred to the Crown, and next in
18121, when the forts and possessions of the late African
Company on the Gold Coast were annexed to the colony.
-Sierra Leone Como Rep, 89.




494 SIERRA LEONE.
The charter as last revísed in 18521, ordains that there


shall be nine 01' more councillors advising and assisting
tbe Governor, (five of tbem to be a quorum,) that in the
making or passing of laws the Governor (01' in the absence
of the Governor, tbe Lieutenant-Governor 01' Commander-
in-Chief for the time being,) shall have a negative voice,
and that in certain cases the Govemor shall have power
to suspend councillors, and when the number in the eolony
shall be less than nine, to appoint others, subject to His
Majesty's approval. The couneillors first named in tbe
charter are councillors ex qfficio, namely tbe Cbief Jus-
tiee, the King's Advocate, the Colonial Secretary, and
the Surveyor of Lands, The Chief Justice, tbough first
in council, is decIared ineligible to succeed to tbe adminis-
tration of the government. The King's Advocate, as next
in order, is consequently the person to succeed pt·o tem-
pore in tbe event of the ' absence 01' death of the Gover-
nor, unless a Líeutenant-Governor has been previously
appointed, which appointment may in certllÍn specified
cases be made by the Governor. The commissioners
thought that this rule, preferring the King's Advocate to
the chief justice as the temporary successor of the Gover-
nor, imperiously required alteration.


LAWS.(I)
Tbe law of EngIand is understood to be and in practice


generally is the law of tbe land; but the Governor and
Couneil are empowered to make sueh laws as they may
deem necessary to the welfare of tbe colony, subject how-
ever to certain restrictions which are specified in the
chárter. They have accordingly exercised tbis power
from time to time as círcumstances seemed to them to re-
quire, The colonial enactments have generally been pre-
pared by the King's Advocate, but in sorne instances by
other members of Council, and being passed after three
readings, tbey are recorded in the minute book and be-
come laws. It has been customary to promulgate the
orders of the executive by means of procIamations issued
by the Governor. The provisions of the Act for the Re-
lief of Insolvent Debtors are not in force at Sierra Leone,


(1) See ante, p. 3 to 16, on the general toplc how fur the colonice are sub-
jeet to the law of the motber country,




sIERRA LEONE. 495
nor is there any colonial enactmcnt analogous to it. 'I'rial
by jury is a part of the law and is advantageously in
practice. There are no other qualifications requircd than
his being an inhabitant of the colony and of sufficient age
and of good character---Sierra Leone Como Rep. 89.


COLLECTION OF LAws.


An attempt was lately made to arrange such laws as
are in force, with a view to their being printed; the ob-
ject however was but partially accomplished, and there
being hut one manuscript copy in the colony (18~6) few
of the magistrates have the means of referring to it.-id.
ih.


COURTS.


The Governor and Council constititute a Court of Re-
cord to hear and determine appeals from the Court of the
Recorder 01' other Superior Courts of the Colony, and
when the matter in dispute excceds the value of of400, an
appeal lies to the King in Council.


The colonial courts are as follows- the Court of Royal
Commission, the Court of Vice-Admira1ty, the Court of
the Recorder of Frcetown, thc Courts of Quarter Sessions,
Oyer and Terminer, the Court of Requests, and the Po-
lice Court. ~


An authority is vested in the Governor and Council to
establish such other courts and to issue such special com-
missions as the due administration of justice may seem
to requíre. The Governor has also the power of conven-
ing courts as Chancellor and Ordinary.


Court of Royal Commission.
The Commissioners of the Royal Court constituted un-


del' the great seal are the Governor, the Chief Justice,
Commissary Judge of the mixed Courts, King's Advocate,
Colonial Secretary, and others specified in the commis-
sion, three of whom may form u court, one of the four
first-named always presiding. This court was established
for the trial of offences committed on the high seas, and
for offences relating to the slave trade, in places where no
local British jurisdiction existed. It has not often been
called ipto operation.




4·96 SIERRA LEONE.


Vice-Admimlty Court,
The Chief-Iustice isjudge ofthis court, which has powel'


and jurisdiction similar to those of the corresponding
courts inthe Wcst India Islands, but since the establish-
ment of the courts of mixed commission the business of
this court has been very much reduced.


Court of the Recorder of Freetoum.
The Chief Justice, as Recorder, presides in this court,


and is aided by the assistant judges appointed by the
Governor from amongst the members of Council. This
court is stated by the chief justice to resembIe most
closely the Court of Common Pleas in England, and to be
also a Court of Equity, -Although two assistant judges
are appointed, one of these in addition to the chief jus-
tice, 01' in cases where he is a party, the two assistants
only, may constitute a court, In a11 cases where the
number of voices sha11 be equal, the chiefjustice, 01' in his
absence, the senior assistant judge present, has two voices,
This court is empowered by charter to hear and deter-
mine all civil suits, actions, 01' pIeas which may happen
within the colony, 01' any of the forts, islands, &c. subject
thereto. In a1l cases where the action would, if the par-
ties were resident in England, be tried by a jury, it is
directed that such action sha11 be tried before a jury in
the Court of the Recorder according to the practice in
EngIand, 01' as near thcrcto as circumstances will permito


Court of Quarter Sessions of tite Peace and of Oyer and
Terminer,


The Chief Justice and two other members of Council
usual1y preside at this court, The practice is regulated
by that of the judges on circuit in EngIand.


Court ofRequests.
By the charter of 1821 the Court of Requests esta-


bIished by the former charter was abolished, but the Go-
vernor was directed, with the concurrence of thc Council,
to appoint justices 01' other commissioners for particular




SI ERRA LEONE. 4·97
districts, upon whom.the authority of the abolished court
would devolve, and who were to determine all matters of
debt 01' damage under 4.os. in the same manner (as near
as circumstances would admit) as it was lawful for Com-
missioners of Requests to do in England. This was done;
and by an act of the Governor and Council in 1825, the
jurisdiction of the commissioners was extended to actions
amounting to afIO, provided that if the sum exceeded
4,Os" appeal might be had, if in Garnbia 01' on the Gold
Coast, to their respective Courts of Common Pleas, and
in any other part of the colony to the Court of the Re-
cordel' of Freetown, The eommissioners are empowered,
in default of payment, to commit the debtor to prison for
various specified times, such commitments to be in fu}} sa.-
tisfaction of judgment. Commissioners of Requests Bit
once a week at Freetown, and form what is there called a
Court for the Recovery of SmaIl Debts.


The Pollee Court qf Freetoum;
This court may be held twice a week before two ma-


gistrates, (a mernber of councilzbeing one,) so that by
the presence of two a kind of petty sessions should be
formed, the member of eouncil always presiding. The
proceedings are to be recorded by a clerk of poliee, who
is maintained on the civil establishment for the purpose.


JUDICIAL ESTABLISHMENT.


The judicial establishment in 1826 consisted (inde-
pendently of the Governor and Couneil) of the Chief
Justice, the King's Advocate, the Sheriff, the Clerk of
the Crown and the Recorder's Court, the Coronel' of Free-
town and two Practising Attornies, seven Justices in the
Commission of the Peace, the Mayor of Freetown and
three Aldermen, eight Commissioners of Requests, be-
sides eight District Magistrates, three of whom are Coro-
ners for three eountry districts,


The King's Advocate.
This officer is understood to be the Governor's legal


adviser, and the public prosecutor. He also practises as
an advocate 01' attorney in the courts,


KK




498 SIERRA LEONE.


Skerijf.
The sheriff is annually appointed by the Governor and


Council. His duties correspond to those of sheriff in
England,


Clerk of the Croum.
This offlcer is also clerk of the Court of the Recorder,


and one of the writers in the offíce of the Colonial Secre-
tary.


Coroner.
The Coroner of Freetown was stated by the chief jus-


tíce to have been sornetimes appointed by the Governor
and sometimes elected by the freeholders.


Attornies and Solieitors,
Neither of the two individuals praetising as attornies


and splicítors has been professionally edueated. One ís
an Eoropean, who acts as King's Advocate and Registrar
of the Viee-Admiralty Court; the other a person of co-
lour, born and educated in England, and engaged in mer-
cantile pursuits.


Justlces.
One of the seven justiees is a military officer ; the other


six hold civil situations under the government.
The Mayor and Aldermen of Freetown are appointed


hy the Governor and Council.
Of the Commissionérs of Requests three are magia-


trates and five are persons engaged in trade.
The district magistrates, three of whom are also coro-


ners, are either local superintendants or hold situations in
their respective districts as clergymen or teachers under
the Church Missionary Society.-Sierra Leone Como Rep.
89 to 96.


GAMBIA.
The executive powers of the Commandant are pretty


much confined to matters of police 01' local regulations for
the town of Bathurst.




SIERRA LEONE. 499
There are at present resident in Sto Mary's eight jus-


tices of the peace, one of whom acts as sheriff, and the
other seven are Commissioners of Requests.


Since the formation of the settlement only two Courts
of Oyer and Terminer and General Gaol Delivery have
becn held, at which MI'. Rendall, the Chief Justice of
Sierra Leone, acted as president.-Rep. Como Sierra
Leone, Gambia, House of Commons' Papers, ~9th June,
1827, No. 552.


GOLD COAST.
No distinct judicial establishment exists upon the Gold


Coast; the only civil authority is that vested in individuals
as justices of the peace, who act also as Commissioners of
Requests. In the latter character they have decided
cases where the matter in dispute was upwards of 1:30 in
value.-Id. ib.


-


CHARTER OF JUSTICE.


Ninth Part Patents of the Second Year of King George the Fourth,


GEORGE the Fourtb, by tbe grace of God, of the United Kingdom of
Great Britain and Ireland King, Defender of the Faith, to all to wbom
tbese presents shall come, greeting: Wbereas by an Act of Parliament
made and passed in the thirty-first year of the reign of bis late Ma-
jesty King George the Third , our dearest father, intituled, " An Act for
establishiug a Company for carrying on Trade between the Kingdom of
Great Britain and the coasts, harbours, and countries of Africa, and for
enabling the said company to bold by grant from His Majesty, his
heirs, and successors, and from the native Princes of Africa, a certain
district of land, commonly called tbe Península of Sierra Leone, now
vested in his lVIajesty 01' belonging lo the said princes, for the better
enabling tbe said company to carry on tbe said trade," it was, amongst
other tbings, enacted, tbat the several persons therein named and
described sbould be and they were thereby created one distinct and
sepárate body politic and corporate, by the name or style of" The
Sierra Leone Company;" and it was also enacted, that it sbould be
lawful for bis said late Majesty, his heirs, and successors, to make unto
tbe said company a grant by letters-patent, under the great seal of


KK2




500 SIERRA LEONE-CHARTER OF JUSTICE.
Great Britain, of so much and such part of all that tract 01' district of
land situate and being at Sierra Leone, on the coast of Africa, and
commonly called 01' known by the name 01' description of "The Pe-
ninsula of Sierra Leone," as then already might have 01' should there-
after by any grant, purchase, 01' cession from any of the kings, princes,
01' chiefs having right therein, become vested in his said late Majesty,
his heirs, 01' successors, with power and liberty to and for the said
company to purchase of and from all kings, princes, and chiefs, 01'
other powers having right to make sale thereof, so rnuch land as should
inc1ude the whole tract 01' district so commonly called 01' known by the
name of the Península of Sierra Leone as aforesaid, bounded as therein-
after mentioned; tohold the same to the said companyand their assigns,
upon sueh terms, eonditions, and reservations as his said late Majesty, his
heirs, and successors should judge expedient; and it was thereby fur-
ther enacted, that the said Aet should takc place and have continuance
from the 1st day of July, 179i, for the term of thirty-one years, and
from thenee to the cnd of the next session of Parliament: And whereas
the said eompany, in pursuance of the said Aet and immediately after
passing the same, did raisc a large capital of stock, and did enter upon
the business and undertakings for whieh they were incorporated, and
did also purehase from the natives of Sierra Leone aforesaid a part 01'
dístrict of the said peninsula, and form a very considerable establish-
ment for their offieers, servants, and settlers, and built a town called
Freetown, and laid out plantations there, and also formed sorne other
settlements 01' factories on the neighbouring coasts for the purpose of
carrying on trade with this country in the natural produetions of
Afriea: And whereas the said company humbly besought his said late
Majesty, by petition, to make unto them such grant of the said penin-
sula as in the said Act of Parliament is speeified; and further to grant
unto them certain powers, prívileges, and franchises for the government
of the said peninsula, and for the effectual administration of justiee in
civil causes, and for the tria! and punishment of erimes 01' misdemeanors
eommitted there, 01' in the said company's other faetories and settle-
ments, suggesting that the granting of sueh powers unto the said
company would not only conduce to the welfare of the said península,
but would also tend (as there was great reason to believe) to advance
the national interests on the continent of Afriea: And whereas his said
late Majesty having considered the premises, did by virtue and in pl1l'-
suanee of the said recited act, and of his own special graee, eertain
knowledge and mere motion, give and grant, by lcucrs-patent lindel' the
great seal of Great Britain, bearing date at Westminster the 5th day of
July, in the fortieth year of his reign, for himself, his heirs, and succes-
sors, to the said eompany, their suceessors, and assigns, under the
reservations, limitations, and declarations thereinafter expressed, all and




SIERRA LEONE-CHARTER OF JUSTICE. 501
every sueh part and parts of all that tract and district of land, situate
and bcing al. Sierra Leone, on the coast of Afriea, and cornmonly
called 0\' known by the name 01' description of " The Peninsula of Siena
Leone,' as already had by any grant, purchase, 01' cession from any of
the kings, princes, 01' ehiefs having right tberein h~eome vested in his
said late Majesty, his heirs, and successors, together with al! the soils,
grounds, havens, ports, gulfs, and bays, mines, minerals, preeious
stones, quarries, woods, rivers, waters, fishings, as well royal as other
fishings, pearls, commodit.ies, jurisdictions, royalties, franchises, pri-
vileges, and pre· eminences withín the same, and the precincts thereof
and thereunto in any sort belonging 01' appertaining, and whieh his said
late Majesty, by his letters-patent, might 01' could grant, and in as
ample.a manner as his said late Majesty 01' any of his royal progenitors
had bitherto granted 1.0 any company 01' body politic 01' corporate, 01'
any other person 01' persons whomsoever, aud in as large and ample a
manner as if the same were there partieularly mentioned and expressed ;
and elid further give and grant unto tbe saiel eompany, their successors,
and assigns, fnll power, liberty, and privilege 1.0 purchase of and from
all kings, princes, and chiefs, 01' other powers having rigbt 1.0 make sale
thereof, so mueh land in aeldition thereto as should include the whole
tract 01' elistrietcommonly calle.l 01' known by the name of" The
Península of Sierra Leone " as aforesaid, as tbe same was bounded on
the nortb by tbe river Sierra Leone, on the south by the river Cara-
manea, on the east by the river Bruee, and on the wesl by the sea; lo
have, hold, and enjoy the sarné peninsula, and the whole use, property,
and possession thereof, unto the said company, tbeir suceessors, and
assigns, 1.0 be holden of his said late Majesty, bis heirs, and successors,
as of his manor of Easl Greenwieb, in the county of Kent, in free and
eornmon soeage and not in eapite, yielding and paying therefore to his
said late Majesty, his heirs, and suecessors, the rent 01' sum of ten
shillings of lawful money of Great Britain, on the 1st day of Septernber
yearly, all which lands, countries, and premises tbereby granted 01'
mentioned, 01' intended so lo be, bis said late majesty did by tbe said
letters-patent make, erect, and create one independent and sepárate
eolony, by the name of " Tbe Colony of Sierra Leone ;" and did further
for himself, bis heirs, and successors, grant unto tbe said company and
their suecessors, and did by the said leuers-patent 01' chárter of justice
ordain, will, and establish that the Court of Direetors of tbe said com-
pany, assembled for that purpose, should and rnight make, enact, and
declare laws, statutes, and ordinanees fit 3\1(1 neeessary for and con-
cerning the government of the said colony, and that the same should be
in full force and virtue within tbe said eolony of Sierra Leone, so as the
same should not be repugnant to the laws of this rcalm, and to impose
reasonahle fines, penalties, 01' forfeitures for any breach 01' breaches




502 SIERRA LEONE-CHARTER OF JUSTICE.
thereof; and did further will and ordain that the Court of Direetors of
the said company for the time being, being assembled for that purpose,
should from time to time have full power and authority to nominate,
make, constitute, and appoint a Governor and three councillors for the
government of the said colony, and the factories 01' settlements dependen!
thereon, and such Governor and Council, 01' any of them so appointed,
at their pleasure to remove 01' recall, and another 01' others in his 01'
their place 01' places to appoint; and that such Govcrnor and Council
so to be appointed, should and might make, enact, and declare laws,
statutes, and ordinances fit and necessary for and concerning the go-
vernment of the said colony, and not repugnant to the laws and statutes
of this realm, and that the same should be in full force and virtue
within the said colony of Sierra Leone until the said Court of Directors
should think fit to disallow 01' disapprove of the same; and did further
give and grant unto the said company and their successors, and did by
the said charter ordain, direct a~d establish that there should be within
the said town of Freetown one body politic and corporate, by tbe name
01' style of" The Mayor and Aldermen of Freetown," and that sueh
body politic and corporate should consist of a mayor and three alder-
men, and that the said body politic and corporate, by the name and
style aforesaid, should have perpetual succession, and should and might
be able and capable in law to sue and be sued in any courts and causes
whatsoever, and should and might have a common seal for the business
and affairs ofthe said corporation, which common seal they and their
suecessors might break and change at their pleasure :_ And did further,
by the said chárter, direct that the persons constituted respectively the
first and modern mayor, and the first and modcrn alderrnen of the said
town of Freetown, in and under the same, should, at a time to be ap-
pointed for that purpose by the Governor, 01' in case of his absence, by
the senior of the Council then residing at Sierra Leone, within fourtecn
days after notice of the said chárter, take an oath duly lo execute their
respective offices, together with the oath of allegiance, which oath the
said Governor, 01' in his absence, the senior of the council then residing
at Sierra Leone, was thereby empowered to administer, and that from
the time of taking the said oaths of office and aUegiance the said
mayor should continue in the said office until another person should be
duly elected and sworn into the said office as thereinafter was directed;
and did by the said chárter direct that the said persons therein nominated
as aforesaid to be alderrnen of Freetown, should continue in their re-
spective offices of aldermen from the time of taking such oaths as afore-
said, for and duriog the term of their natural lives, unless their said
places should be avoided, 01' themselves removed, in such manner as
thereinafter was mentioned : And did further will and direct, that it
should and might be lawful to and for the Governor and Couneil of the




SIERRA LEONE-CIIARTER OF JUSTICE. 503
said colony for the time being, or the major part of them, whereof the
said Governor, or in his absence, the senior of tbe council then residing
at Sierra Leone, to be one, yearly and every year, on the first Monday
in tbe month of September, to assemble themselves and proceed to the
election of one person out of the aldermen of the said town of Freetown
to be mayor of the said town for one year, from tbe 291hday of Septem-
ber in every year, and until anotber sbould be duly elected and sworn
into tbe said office: And did further ordain and appoint, tbat the person
so chosen into the office of mayor should, on or before tbe 29th day 01'
September next after be should be chosen into his said office as afore-
said, take tbe usual oath of officeand the oath of allegiance before [he
said Governor for tbe time being, or in bis absence, before the senior of
the council then residing at Sierra Leone, who were tbereby authorized
and required to administer the same, and should continue in such office
for the space of onewholeyear from the said 29th day ofSeptember, and
until anotber should be duly elected and sworn into the said office in
manner before mentioned; and tbat in case any mayor should happen
to die in his said office, ths Governor and Council of the said colony
for the time being, or thc major part of them, (whereof the said Gover-
nor, or in his absence, the senior of the council then residing at Sierra
Leone, to be one,) should and might, as soon after as they conveniently
could, assemble and elect one other person out of the said aldermen of
the said town of Freetown for the time being to be mayor of the said
town of Freetown for tbe remainder ofthe year, and until another should
be duly elected and sworn into tbe said office; and that the person so
cbosen and appointed as aforesaid should immediately thereupon take
the same oaths of office and allegiance as were before directed to be
taken by the mayors of the said corporation: And did further ordain, that
the mayor of the said town of Freetown thereinbefore nominated, and
every other person who should thereafter be mayor of the saíd town,
should, after the determination of his office of mayor, continue to be one
of the aldermen of the said town until his said place should be avoided
and himself removed in manner thereinafter mentioned; provided that
tbe mayor for the time being should be capable of being re-elected from
time to time when and as the electors shouId tbink fit: And did further
will and direct, that so often as any of the aldermen of the said town
should die or be removed, or their pIaces be avoided in manner there-
inafter rnentioned, the Governor and Council of the said colony for the
time being, or the major part of them, (whereof the said Governor, or,
in his absence, the senior of the Council then tesiding at Sierra Leone,
lo be one,) should and might assernblc and clect some other fit person
out of the inhabitants of the said town of Frcctown into tho said place
of alderman, who should, within fourteen days aftcr his election, take
the oath of office and the oath of allegiance before the Covernor of tho




501< SIERRA LEONE-CHARTER OF JUSTICE.
said colony for the time being, 01' in his absence, tbe senior of the
Council then residing at Siena Leone, and should continue in such
office during his life, unless bis said place should be avoided, 01' bimself
removed, in such manner as thereinafter was mentioned ; and that if
any person so chosen an alderman should neglect 01' refuse to accept
such office, not baving a reasonable excuse for so doing, and should not
within fourteen days next after such his election take the oath of office
and the oath of allegiance, tben and in such case every such person
should forfeit and pay such reasonable fine as should for that purpose
be fixed and agreed on by tbe Court of the Mayor and Aldermen
thereinafter constituted, with the approbation and consent of the said
Governor and Council of the said colony for the time being, 01' the
major part of them, (whereof the said Governor, 01' in his absence, the
senior of the Conncil then residing at Sierra Leone, to be one,) to be by
them signified to the said court in writing: And did further by the said
charter ordain and provide, that irthe said mayor, 01' any of the said alder-
men, should remove 01' return to Europe, 01' should otherwise be absent
from the said town of Freelown by the space of three calendar months,
unless for such reasonable cause as the said Covernor and Council for
the time being, 01' the major part of them, (whereof the said Covernor,
01' in his absence, tbe senior of the Council then residing at Sierra
Leone, to be one,) should allow, 01' should becomo the said company's
Governor, 01' one of their Council of the said colony, in every such case
the place 01' office of every such mayor 01' alderman should be void;
and it should and might be lawful lo choose another mayor 01' alderman
in the place and stead of such pel'son, in the same rnanner as was
before provided in case such mayor 01' alderrnan had been naturally
dead: And did further thereby direet and appoint, that it sbould and
rnight be lawful to and for tbe said Governor and Council of the said
colony for the time being, 01' the major part of them, (whereof the
said Governor, 01' in his absence, the senior of the Council then residing
at Sierra Leone, to be one,) to remove any of tbe said aldermen, upon
reasonable cause, provided that a complaint in writing were fírst ex-
hibited against him, and that he had a reasonable time given him for
his defence, and were summoned for that purpose, in case he should be
resident within the limits and precíncts of the said town of Freetown ;
but that in case any person should think himself aggrievcd by any such
sentence 01' adjudication of removal, such person might, within one
calendar month after notice of such removal, appcal to the said Court
of Directors, upon giving security to pay the costs of such appcal in
case such sentenee 01' adjudication should be affirmed, although sueh
appeal should not suspend the execution of sueh sentence: And did
further by the said chárter ordaiu, direct, and appoint, that the mayor
and aldermeu for the time being of the town of Freetown aforesaid




SIERRA LEONE-CIlARTER or JUSTICE. 505
should be, and they were thereby constitutcd, a Court of Record, by the
name of " The Mayor's Court of Freetown ;" and that they, or any two
or more of thern, (whereof the mayor, or lhe senior alderman for the
time being residing there, to he one,) might, and they were thereby
authorized to try, hear, and determine all civil suits, actions, and pleas
between party and party that should or might arise or happen, or that
had already arisen or happened, within the said eolony of Sierra Leone,
or any of the faetories subject or subordinate thereunto, exeept such
suits or actions as should be between nativos of África only not beeome
settlers within the said colony or factories, in which case his said late
Majesty willed that the same should be determined among thernselves,
unless both parlies should by consent submit the sarne to the deterrni-
nation of the said Mayor's Court, and also exeept where the cause of
action or suit should not exceed the valus of 40s.: Provided, that if
the said mayor, or any of the said aldermen, should be in any ways
interested in the event of any such action or suit, no such mayor or
aldermen so interested as aforesaid should sit or aet as judge in such
suit or action, but that the sanie should be heard and deterrnincd by
such of thern, the said mayor and aldermen, as should be no ways in-
lerested therein ; and that in all cases whcre the number of voices should
be equal in the determination of any action or suit, the mayor, or in his
absenee, tbe senior alderrnan present, should have two voices: And did
further by the said charter direct, that the person constituted first sheriff
of the said colony in and under the same, should, at a time to be
appointed for that purpose by the Governor, or in his absence, by the
seniorof the Council then residing at Sierra Leone aforesaid, within
fourteen days after notice of the said charter, take an oath duly to
execute his offiee, together with the oath of allegiance, which oaths the
said Governor, 01' in his absenee, the senior of the Couneil then residing
at Sierra Leone aforesaid, was thereby empowered to administer; and
that from the time of taking the said oaths of office and ailegianee the
said sheriff should continue in the said office until another should be
duly elected and sworn into the said office, as thereinafter was directed;
and that the Governór and Council of the said colony for the time being,
or the major parl of them, (whereof the said Governor, or in his absence,
the senior of the Council then residing at Sierra Leone, to be one,) should
yearly, on the first Monday in the month of September, asseruble them-
selves, and proeeed to the eleetion of a new sheriff for the year ensuing,
to be computed from the 29th day of September next after such election,
wbich sheriff, when elected, so 500n as conveniently might be, and
before he should enler upon his said offiee, should take the usual oath
of office and the oath of allegiance before the said Governor for the time
being, or in his absence, the senior of the Council then residiug at
Sierra Leone, who were thereby authorized to administer the same, and




506 SIERRA LEONE-CHARTER OF JUSTICE.
should continue in such office during the space of one whole year,
from the said 29th day of September, and until another should be duly
elected and sworn into the said office, unless his said place should be
avoided in such manner as thereinafter was mentioned; and that in
case any such sheriff should die in his office, or should remove from the
said town of Freetown, 01' be absent from the same by the space ofthree
calendar months, unless for such reasonable cause as the said Governor
and Council for the time being, or the major part of thern, (whereof the
Governor, 01' in his absence, the senior of tbe Council then residing at
Sierra Leone, to be one,) should allow, then the said Governor and
Council, 01' the major part of thern, (whereof tbe Governor, 01' in his
absence, the senior of the Council then residing at Sierra Leone, to be
one,) should and rnight, as soon as conveniently might be after the
death, removal, or absence of such sheriff, assemble and choose another
person to be sheriff in his room, who should be sworn as aforesaid, and
continue in his office for the remainder of the year, and until another
should be duly elected and sworn into the said office; and that the
said sheriff thereby appointed, and every other sheriff so to be elected
and sworn as aforesaid, should, during his and their continuance in such
office respectively, have full power and authority to surnmon juries,
execute and make return of all process of the said court, and of any
other court erected by the said charter within the districts aforesaid;
and in case of the absence of any such sheriff for such reasonable cause,
to be allowed as aforesaid, the deputy or under-sheriff, to be appointed
by su-eh sheriff, should return al! process, and do all acts in the name
of and by virtue of the authority of such sheriff: And did further by
the said charter direct, ordain, and appoint, that upon complaint, to be
made in writing to the said court, by or on the behalf of any person 01'
persons against any other person or persons whomsoever, then residing
01' being, 01' who, at the time when such cause of action had 01' should
have acorued, did 01' should reside 01' bewithin the said town 01' elsewhere
in the said colony of Sierra Leone, 01' any of the factories subordinate
thereto, of any of the causes of suit aforesaid already accrued, 01' which
should 01' might thereafter accrue, unless the same should be between
the natives only of Africa, not becorne settlers within the said colony of
Sierra Leone 01' the said factories, 01' unless such cause of suit should
not exceed the value of 40s., the said court should and might issue a
surnrnons in writing, under the hands and seals of two of the judges of
the said court, (whereof the mayor for the time being, or in his absence,
the senior alderrnan residing within the said town of Freetown, lo be
one,) to be directed to the said sheriff, requiring the parly 01' parties,
defendant 01' defendants, to appear before them at a certain time and
place therein to be appointed, to answer the said compluint, and in
default of appearance upon return of the said surnmons at such time




SIERRA LEONE-CHARTER OF JUSTICE. 507
and place, the said court should and might issue forth a warrant, under
the hands and seals of any two of the judges of tho said court, (whercof
the mayor for the time being, or the senior alderman then residing within
the said town of Freetown, to he one, unless the saíd mayor or senior
aldcrman should be a party in such action or suit, and in that case under
the hands and seals of any other two of the judges of the said court,) di-
reeted to the said sheriff for the time being, to take the body or bodies of
such defendant or defendants, and bring him or them before the said court,
at a certain time and place therein to be appointed, to answer to the said
complaint; and in case of appearance or arrest of the body or bodies of such
defendant or defendants, to let such defendant or dcfendants out to bail
upon giving sufficient security (which his said late Majesty did thereby
empower the said court to take) to abide and perform the final order and
[udgment of the said court, or such final order and judgment as should or
might be given upon any appeal to be hrought in the said cause, or to
surrender himself to the said court to be charged in execution till the
said judgment should be satisfied; and in default of finding bail, or
giving such securíty as aforesaid, to detain such defcndant or defendants
in custody, until he, she, or they should have found such bail, or have
given such sccurity as aforesaid, 01' should havo judgmeut or sen-
tence given for him, her, or them for such complaint; and after such
bail-bond or security given as aforesaid, or in case such defendant or
defendants should be detained in custody for want of bail or security, bis
said late Majesty did. thereby for himself, his heirs, and sueeessors,
ordain, direct, and authorize the said court to proceed to the examination
of the matter and cause of complaint, either upon the oath or oaths or
solemn affírmation of any witness or witnesses, to be taken in thc most
solemn manner; that is to say, the oath or oaths of such witness or
wítnesses who should profess the Christian religion to be taken upon the
Holy Evangelists, unlcss sueh witness or witnesses should be of the
persuasion of the people ealled Quakers, in which case a solemn affirma-
tion should be suffieient; and upon the oath or solemn affirmation of any
ofthe natives, in such manner as they should esteem to be the most
binding on their consciences lo oblige them to speak the truth, for which
purpose, the said court was empowered and required by the said letters-
patent to administer such oath or affirmation to such witness or wítnesses
as should be produced on behalf of either party, (plaintiff or defendant,)
or by the eonfession or admission of such defendant or defendants in bis,
her, or their answer, upon the like óath or affirmation, according to his,
her, or their religion, sect, or easte respectively, whieh oath or affirmation
the said court was also by the said Ietters-patent empowered to adminis-
ter; and that thereupgn it should be lawful for the said court to give
judgment and sentence according to law and cquity, and to award and
issue a warrant or warrants of execution under the hands and seals of




508 SIERRA LEONE-CHARTER OF JUSTICE.
two of the judges of the said court, (whereof the mayor of the said town
of Frcetown for the time bcing, 01' the senior alderman then residing.
within the said town, to be one, unless they 01' either of them should be
interested therein, and in that case, undel' the hands and seals of any two
of thc aldermen not interested therein,) to be direeted to the sheriff for
the time being, for levyíng the debt, duty, 01' damages adjudged 01'
deereed to the party 01' parties, complainant 01' cornplainants, together
with their costs of suit, upon the goods and chattels of sueh defendant 01'
defendants, 01' to cause sale to be made of his, her, 01' their goods and
ehattels, rendering to the party the overplus, if any werc; and for want
of sufficient distress, his said late Mujesty did thereby give full power
and authority to the said court to imprison the defendant 01' defendants
until satisfaction was made by him, her, 01' them to the plaintiff 01'
plaintiffs of the debt, duty, 01' damages decreed 01' adjudged, together
with the costs of suit ; and in case ~udgment were given for the defendant
01' defendants, full power and anthori ty were thereby likewise given to the
said court to award costs to such defendant 01' defendants, and to issue thc
like proecss and cxecution for the same as in cases where costs were
awarded to any plaintiff 01' plaintiffs; and that if any action 01' snit should
be brought 01' commeneed against thc mayor of tho said corporation for
the time being during his being 01' continuing in his office, it should and
míght be lawful for the said Mayor's Court to proceed in and deter-
mine such suit, in the same manner as in any other action 01' suit de-
pending before tbem, but such mayor should not sit as judge 01' appear
on the bench during the hearing of the saíd cause 01' making any order
therciu; and that if any action or suit should be brought against the
said sheriff during his being and continuing in his office, it should and
might be lawful to and for the said Governor and Council for the time
being, 01' the major part of them, (whoreof thc Governor 01' the senior of
the Council residing at Sierra Leone to be one,) to nominate and appoint
a proper person to exeeute the process and orders of the said court against
such sheriff for the time being; and to the intent that due provision
might be made that there might be no failure of justice, if the defendant
01' defendants, who was 01' were resident within tl;e said town of Free-
town 01' elsewhere within the said colony, 01' any of the factories 01' set-
tlements subordinate thereto, at the time whcn any causo of action did
accrue should withdraw himself, herself 01' themselves out of 01' should not
be found within the jurisdiction of -the said court, his said late Majesty
did by the said chárter give, grant, will, direet and appoint that in case
the sheriff should make retum to such summons 01' warrant of arrest that
the party 01' parties, defendant 01' defendants therein mentioned, 01' any
of them, was 01' were not to be found within the jurisdiction of the said
court, it should and might be lawful to and for the said court, uron an
affidavit of proof verifying the demand of the plaintiff 01' plaintiffs in such




SIERRA LEONE-CHARTER OF JUSTICE. 509
suit to the satisfaction of the said court, to grant a sequestration to seize
the estate and effects of such party 01' parties, defendant 01' defcnd-
ants, to sucb value as the said court should think reasonable and should
direct in such proeess of sequcstration, and the same to detain in the
hands of a proper person, to be appoiuted by the said court, tilI such
party 01' parties should appear to the said compIaint and give security as
aforesaid ; and in case the party 01' parties, defendant 01' defendants,
should not appear and give security as aforesaid within the space of six
months, unless it should be shown to the said court on behalf of such de-
fendant 01' defendants, that he, she 01' they was 01' wero residing in Great
Britain 01' Ireland, then that it should and might be IawfuI for the said
court to proceed to hear and determine the said causo, and to give judg-
ment therein as aforesaid; and in case judgment shouId be giren for the
plaintiff 01' plaintiffs in such suit, to direct the effects so seizcd to be sold,
and ont of the produce thereof to make satisfaction to thé plaintiff 01'
plaintiffs for the debt, duty 01' damages, and costs recovered, returning
the overplus (if auy should be) unto such dcfondant 01' defendants; and
in case such produce should not be sufficient to makc satisfaction to the
pIaintiff 01' pIaintiffs, that then it should and lIlight be lawful to and for
the saíd court to award exccution for thc residue of the debt, duty, 01' da-
mages and costs, recovered in manuer aforesaid: provided nevertheless,
that in all cases where the action to be tried would, if the parties had
been resident in this reaIm, have been tried by a jury in sorne court of
law, every such action should he tried in the said mayor's court before a
[ury, according to the practice of thc said courts of law in this realm, 01'
as near thereto as the circumstances would admit of; and his said late
Majesty did thereby empower the said court to administer to such jury
the usual oath taken in like cases in this reaIm: And for the considera-
tions therein recited, his said late Majesty further, by the said charter,
wilIed and ordaíned that al! such money, securities and effects of the
suitors of the said court as should bc ordered into court, 01' to be paid, de-
livered 01' deposited for safe custody, sl~ouId be paid 01' deIivered unto 01'
deposited with the Governor and Council ofthe said colony, to be by them
kept in deposit, subject to such orders and directions as the said mayor's
court should from time to time think fit to make concerníng the same for
the benefit of the suitors j and did also give and grant unto the said
Court of Directors of the said Company, 01' the major part of them,
full power and authority from time to time to name and appoint an
officer, under the name of accountant-general of the mayor's court of
Freetown, and the same at their pIcasure to remo ve and another to ap-
point, who shouId act, perform and do ai! matters and things necessary
to carry into execution the orders of the said mayor's court relating to
the payment 01' delivery of the suitor's money, effects and securities unto
the Governor and Couneil of the said colony, and taking the same out




510 SIERRA LEONE-CHARTER OF JUSTICE.
again, and keeping the accounts with the said Governor and Couneil and
registrar, or other proper offieer of the mayor's court, and other matters
relatíve theroto, under such rules, methods and dírections as should from
time to time be made and given by the Court of Direetors of the said
Company, which rules, methods and directions his said late Majesty
thereby willed ami directcd should be according to such as were observed
by the accountant-general of the Hígh Court of Chancery of Great Bri-
tain, or as near thereto as might be, and. as the situation and circum-
stances of affaire would admit; and did further thereby authorize the saíd
mayor's court to administer oaths and affinnations, and to framc such
rules of practice, and nominate and appoint such clcrks and officers, and
to do all such other things as should be found necessary for the adminls-
tration of justíce, and the due execution of ull or any of the powers given
to them by the said chárter, so as they from time to time should give an
account thereof unto the said Company, and so as the samc should be
subject to the approhation, controul aud alteration of the said Court of
Directora of the saíd Company, whom hís saíd late Majesty did likewise
will and ordain to have full power and authority to make such rules and
orders for the better administration of justice as they should from time to
time think fit and necessary; but such rules and orders so to be made by
the said mayor's court, so far as the same should be repugnant to any
rules or orders afterwards made by the said Court of Directors of the said
Company as aforesaid, should nevertheless be in force until the same
should be revoked or altered by the said Court of Directors, and notice
thereof given unto the said mayor's court : And did further thereby
require and cornmand that atable of fees to be aUowed to such c1erks
and officers should be settled by the said mayor's court, and approved and
signed by the Governor and Council of the said colony for the time boing,
and should be written out fair, and constantly fixed up in some visible and
opell part of the room 01' place where the said court should be held, and
that it should be lawful for thc said mayor's court, with the approbation of
the said Governor and Council for the time being, or the major part of
them, and also to and for the Court of Directors of the said Company, to
vary and alter such table of fees in such manner as they should think flt :
And it was further by the said chárter ordained and established, that if
any person 01' persons should think him, her or thernselves aggrieved by
any judgment, sentencc 01' dccrce of íhe said mayor's court, such person
or persons should or might, wíthin fourtecn days after such judgment,
sentence or dccree of the said court should be entered of record, appeal to
the Governor and Council of the said colony for the time being, whom (01'
any two 01' more, whereof the Governor, 01' in his absence, the senior of
the Council then residing at Sierra Leone, to be one) his saíd late Majesty
did thereby for himself, his heírs and successors, constitute, nominate and
appoint to be a court of record for that plll'pose to receive such appeals,




SIERRA LEONE-CHARTER OF JUSTICE. 511
and to hear and determine the same, and to do all other acts, matters and
things necessarily incident thereto; provided, that if the said Governor
and Council should be anyways interested in the event of any such aetion
01' suit, no penon so interested should sit 01' act as a judge upon such ap-
peal, but the same should be heard and determined by sueh of them, the
said Governor and Council, as shouId be no ways interested therein, 01'
any two 01' more of them ; and that in all cases wherein the numher of
voiees should be equal in the determination 01' judgment upon such
appeal, the Governor for the time being, 01' in his absence, the senior of
the Council who should be present, and not interested, should have two
voices, which determination should be final if the debt, damages 01' things
directed to be paid, done 01' delivered, 01' matters in dispute should not
exceed the value of ¡f400; but in case the same should exceed the value
of ¡f400, any person 01' pel'sons who should think him, her 01' thcmselves
aggrieved by sueh judgment, sentence 01' decree made on sueh appeaI,
should and might, within fourteen days after the same should be entered
of record, appeal to his said late Majesty, his heirs and successors, in
Council, (as is usual in cases of appcal from any of the colonies in the
West Indies) upon giving security to pay interest (not exceeding the rate
of interest which should prevail at the time of pronouncing such judg-
ment, sentence 01' decree) for the thíng adjudged 01' decreed to be paid,
done 01' delivercd, and the costs of such appeal, in case the said judgment,
sentenee 01' decree should be affirmed: And did further will and direct
that the judgments, sentences and orders of his said late Majesty, his
heirs and successors, and of the said Governor and Council,made upon such
appeals respectiveIy, should and might be put in execution by the said
mayor's court, in such manner as an original judgmerit of the saíd court
should 01' might havo been, and they the said court were thereby required
and commanded to execute the same accordingly; and in case the
said mayor's court should refuse 01' neglect to cause such judg-
ments, sentences 01' orders to be cxecuted within fourteen days after
application made to them for that purpose, then íhat it should be Iawful
for, and the said Governor and Council were thereby required and com-
manded to execute 01' cause the same to be executed by such ways and
means as the said Mayor's Court might have used 01' employed in exe-
cuting tbe same : And díd further direct and appoint that there should
be within the said town of Freetown a court, which should be called
" The Caurt of Hequests for the town of Freetown, and the Faetories and
Settlements thereof';" and for that purpose willed and required the said
Governor and Council, as soon as conveniently might be after the arrival
of tbe said charter, to nominate and appoint sorne of the principal inha-
bitants of the town of Freetown aforesaid, not more than twenty-four nor
fewer than eight, to be Commissioners to hear and determine suits in a
summary way, under such rules, orders and regulations as should from




512 SIERRA LEúNE-CHARTER OF JUSTICE.
time to time be given or sent to them under the hands of the Court of
Directora of the saíd Company, which Commissioners, any three or more
of them, should have full power and authority to hear and determine all
such actions or suits as should be brought before them, where the debt,
duty or matter in dispute. should not exeeed or be more than the value of
10s.; which Commissioners so to be appointed should sit one day in
every week from the hour of nine to eleven in the forenoon, or longer if
the business should require, to hear and determine all sueh causes as
should be bronght before them not exceeding the value aforesaid: AmI
did fnrther by the said charter will",ordain and establish that the Go-
vernor and Couneil of the said eolony for the time being should be jus-
tices of the peace, and have power to aet as justices of the peaee in and
for the said town of Freetown and throughout the said eolony of Sierra
Leone, and all the faetories and settlements subordinate thereto, in the
same or the like manner, and with the samc or the like powers, as justices
of the peace eonstituted by any eommission or letters patent under the
great seal of Great Britain, for any county, city or town corporate in that
part of Great Britain ealled England, did or might exercise sueh ofliee:
AmI did further will and provide that the saíd Governor and Couneil for
the time being, or any two or more of them, (whereof the Governor for
the time being, or in his absence the senior of the council then residing
at Siena Leone, to be one,) should and might hold quarter sessions of
the peace four times in the year within the district aforesaid, and should
at all times thereafter be a Court of Record in the nature of a court of
oyer and terminer and gaol delivery, and should from time to time and
at all times thereaftcr be commmissioners of oyer and terminer and gaol
dclivery for the tryiug and punishiug of all offenders and offences (high
treason only exeepted) had, eommitted or done, or to be had, committed
or done within the said town of Freetown or elsewhere within the said
colony of Sierra Lcone, and any of the said factories or settlements sub-
ordinate thereto; and that it should and might be lawful to and for the
said justices of the peace and commissioners of oyer and terminer and
gaol delivery respectively to proceed by indictment or by such other
ways, and in the same or the like manner, as was used in that part of
Great Britrin called England, as near as the condition and the eircum-
stanccs of the place and inbabitants would admit of'; and for that purpose
to issue theír warrant 01' precept to the-sheriff of the said distriet for (he
time being, commanding him to summon a convenient number of the
principal inhabitants within the said dístrict to serve and attend as a grand
and petty jury at the said COUl't respectively j and that the saíd justices of
the peace and commissioners of oyer and terminer and gaol delivery re-
spectivcly, should and might administer to them the usual oath taken in
Eugland by granel and petty juries, and also administcr to the witnesses
who should be produced for or against the party to be tried a proper oath




SIERRA LEONE-CHAIlTER OF JUSTICE. 513
or affirmation, in such manner as they should esteem most binding 011
their consciences to oblige them to speak the truth, aud that the said
justices and commissioners should and might rcspectively proceed to the
arraignment, trial, eonvietion aud punishmcnt of persons aeeused of any
crimes or offenecs, (high treason only excepted.) in the same or the like
manner and forrn, as near as the condition and eircumstauces of the
place and inhabitants would admit of, as any justiees of the peace 01'
commissioners of oyer and terminer and gaol delivery in that part of
Great Brit~in cal1ed England usually and legaUy do; and that the said
court might assemble and adjourn at and unto such times and places as
they should judge convenient : And did thereby direct that the said Go-
vernor should before the Couneil there, or thc major part of them, take
an oath faithfully to execute the said offices of Governor, J ustice of the
Peaee, and Commlssloner of ayer and Terminer and Gaol Delivery,
together with the oath of allegianee, which oaths they were thereby em-
powered to administer ; and after the taking sueh oaths, did thereby au-
thorize the said Governor to administer an oath to the Couneil faithfully
to execute the said offieesof Council, J ustices of the Peace, and Cornmis-
sioners of ayer and Terminar and Gaol Delivery, together with the oath
of al1cgianee: And did by the said chartcr further ordain, establish and
appoint, that when any person should die within the said town of Free-
town or elsewhere within the said colony of Sierra Leone, or any of the
factories or settlements subordinate thereto, and should by his will appoint
any person or persons within the said town or colony, 01' the factories or
settlements aforesaidJ to be his executor or executors, then and in such
case that the said Mayor's Court, upon proof made 'of tbe due execution
of the saíd will, should and the same was thereby authorized and re-
quired to grant probate of the said will under the seal of the said court,
(whieh seal the said court was authorized by the same to use for that and
other purposes.) whereby the person 01' persons so named executor or
executors should have fuU power and ample authority to act as sueh, as
touching the debts and estates of his, her 01' their testator; and where
any person should die within the town or faetories, or lirnits thereof, in-
testate, or not having appointed sorne person or persons to be exeeutor or
exeeutors residing within the said town, eolony, factories 01' settlements
that in either of these cases the said Mayor's Court should, and the sarne
was thereby empowered and required to grant letters of adrninistration 01'
letters of administration with atrauthentic copy ofthe will annexed, (de-
terminable upon any executor named in sueh wil! appearing in court and
praying probate thereof,) as touehing the debts and estate of the person
dyíng intestate 01' not naming sueh executor as aforesaid that should be
or arise within the limits aforesaid, to sueh person or persons then re-
siding within the jurisdietion of the said court as should be next of kin
to the person so ilying 01' his rcsiduary legatee, and in case there should


1; L




514 SIERRA LEONE-CHARTER OF JUSTICE.
be no such person within the said jurisdiction then to the principal ere-
ditor of the person so dying, and for want al' any creditor appearing, then
to such other person or persons as should be thought proper by the said
court, every such .person or persons to whom such administration should
be granted first giving security by bond (respect being had to the value 01'
the estate) to the mayor of the said town, with condition in the forro
usually given in courts ecclesiastical within that part al' Great Britain
called England, or as near thereto as the nature and circumstances 01' the
case would admít ; and that such perSQIl or persons to whom administra-
tion should be so granted should and might act in all respects as adminis-
trator or administrators touching~he debts, effects and estates of such
person or persons to whom he, she 01' they should take out administration
as aforesaid, which should be or arise within the saidlimits: And where-
as in pursuance and by virtue and authority of thc said letters-patent,
such Governor and Council, Mayor's Court, and such other courts and
officers as are therein mentioned, wcre fully constituted, elected and ap-
pointed within the saíd colony-of Sierra Leone, and entered upon and
thenceforward excrcised the various jurisdietions and authorities, offíces
and functions respectively granted to and vcstcd in thcm in and by the
said charter, and divers laws and statutes and ordinances fit and neces-
sary for and concerning the government of the said colony, and not re-
pugnant to the laws and statutes of this reaIm, were from time to time
made, enacted and declared as well by the said Governor and Council as
by the said Court of Directors of the said Company, and divers rules and
orders for the better administration al'justice were also from time to time
made by the said Mayor's Court in further pursuanee of the said charter:
And whereas by an Act of Parliament passed in the forty-seventh year
of the reign of his said late Majesty, intituled, "An Act for transferring
to his Majesty certain possessions and rights vested in the Sierra Leone
Company, and for shortening the duration of the said Company, and for
preventing any dealing 01' tralficking in the buying or selling of Slaves
wíthin the Colony of Sierra Leone," reciting the said Act of Parliament
therein first recited, and in part reciting or mentiouing the said letters-
patent hereinbefore recited; and further reciting that the said company,
convinced of the expediency of relinquishing the government and ma-
nagement of the said colony, had expressed a desire to make and had
humbly eutreated his saíd late Majesty to accept a surrcnder to his said
late Majesty al' all the tract al' district of land granted to them by the
said lctters-patent or charter of justicc, 01' of which the said company
were possesscd, 01' which they did then enjoy by purcbase 01' othcrwise in
addition to tite said Iands so granted as aforesaid to the said company, and
that they were further desirous that theír existence as a body politic and
corporate should cease and determine within such period of time, shorter
than that limited and declared in and by tbe said first berein recited




SIERRA LEONE-CHARTER OF JUSTICE. 515
statute, as was deemed by the said company sufficient for them in which
to settle their affairs: And whereas, for confirming and giving effect to
such intended surrender and for limiting the duration of the said com-
pany, it was in and by the said now recited act enacted that the said
Ictters-patent 01' charter of justice and grant therein mentioned and here-
inbefore recited, and every matter, clause and thing therein contained,
should and the same were thereby declarcd to be thenceforth null and voíd,
and that the said company should be and they were thereby divested of and
from all that tract 01' district of land commonly called and known by the
name 01' description of the Península of Sierra Leone, and of and from all
forts, castles, buildings 01' estatc which had been after purchased 01' other-
wise acquired by the said company in addition thereto, 01' which then
were possessed 01' claimed by the said company in 01' about the said pe-
ninsula, and that the said tract 01' district of land, and all forts, castles,
buildings 01' estate so purchased 01' otherwise acquired, possessed, en-
joyed 01' claimed by the said company, should "'ihenceforth be, and the
same and every of them were and was tbereby declared and enacted to
be fuUy and absolutely vested in his said late Majesty, his heirs and suc-
cessors for ever: And whereas it was in the said act now in recital further
enacted, that at the expiration of seven years from and after the passing
of the said act the said Sierra Leone Company should cease lo be a body
politic and corporate to all intents, constructions and pmposes whatsoever,
anything in the said herein first recitcd act to the contrary thereof in any
wise notwithstanding; provided always and it was thereby further enact-
ed, that it should not be lawful for any person 01' persons whatsoever in-
habiting 01' being, 01' who should at any time thereafter inhabit 01' be
within the said peninsula 01' colony of Sierra Leone, either directly 01' in-
directIy, to deal 01' traffic in, buy 01' sell, 01' to be aiding 01' assisting in
the dealing 01' trafficking, in the buying 01' selling of slaves, either within
the said peninsnla 01' elsewhere: And whercas, in pursuance of the said
Act of Parliament Iast recited, the said campany did on 01' about the 27th
day of July, in the forty-eighth year of the reign of his said late Majesty,
actually and fully surrcnder to the Governor for the time being of the
said colony, by his said late Majesty in that behalf appointed and autho-
rized, the possession of the said colony 01' peninsula, traet 01' district of .
land, and all forts, castles, buildings and cstate, which by the true intent
and meaning of the said last recited Act of Parliament ought to have been
so surrendered, and the same were thenceforth in the possession and
under the government of his said late Majesty: And whereas, it being
necessary to provide for the immediate government and administration of
justice within the said colony, his said late Majesty did soon after the
passing of the said act transmit instructions to the said Governor thereof
for the time being, directing him to continue in all respects the adminis-
tration of justice, and the interior government of the said colony, according


J, L 2




51G SIERRA LEONE-CllARTER OF JUSTICE.
to the provisions and direetions, powers and authorities eontained in the
said in part recited Ietters-patent or chárter of justiee, as if the same were
still in force j and the said Governor and Couneil, Mayor's Court and
othcr eourts so constituted and appoiuted as aforesaid, and the councillors,
j udges and oflieers thereof respeetively, and other judges and officerc
subsequently eleeted and appointed pursuant to the direetions of the said
charter, did accord.ngly eontinue to exereise their former jurisdietions,
functions and authorities, and divers proeeedings as well judicial as minis-
terial were had by and before them, and judgments given and decrees or
orders made in the said eourts, and wills preved and administrations
granted in the said Mayor's Court pursuant to the provisions of the said
charter; all whieh acts and proeeedings, subsequent to the annulling of
the said letters-patent or charter of justice, it was deemed expedient to
ratify and eonfirm: And whereas it was his said late Majesty's royal wil!
aud pleasure, that for the better administration of justiee within the said
colony, a ehief justice -thereof should from time to time be appointed
during pleasurc, who should ha"C sueh jurisdictions aud authorities as are
hcrcinafter mentioned, and who should also be judge of a court of vice-
admiralty by his said late Majesty then lately constituted for the said
colony, with such jurisdictions as then belonged to courts of vice-ad-
miralty in the ·West India islands in general, and should be judge also of
a eourt of prize, with such limited jurisdiction therein as his said late
Majesty thought fit to grant by his prize commission in that behalf; but
that in all other respeets the laws and constitution of the said colony, and
all the judicial and municipal authorities therein, should during his royal
will and pleasure continue such as they were constituted and appointed
to be by the said recited letters-patent or chárter of justice, or under the
authority thereof, as far as the said surrender made to his said late Ma-
jesty by the s~id company, and other the changes of circumstances would
allow: And whereas his said late Majesty, in order to provide for the then
future government of the saíd colony or península of Sierra Leoue, and all
territories thereon depending in Afríea, and for the administration of
justiee thorein, did by letters-patent, under the great seal of Great Britain,
bearing date at Westminster, the 9th day of August, in the forty-ninth
year of his reign, direct that the person appointed or to be appointed
Captain-General 01' Governor-in-Chief of the said colony, after the publi-
cation of the said letters-patent, should in the first place take the oáths
appointed to be taken by an Aet passed in the first year of the reign of
King George the First, intituled, " An Act for the further security of his
Majesty's Person and Government, and the suecession of the Crown in
the Heirs of the late Princess Sophia being Protestants, and for extiu-
guishirig the hopes of the pretended Prince of Wales, and bis open and
secret Abettors," as altered and explained by an Aet passed in the sixth
year of his reign, intituled, " An Aet for altering the Oath of Abjuration




SIERRA LEONE-CHARTER OF JUSTICE. 517
and the Assurance, and for amending so much of an Act of the seventh
year of her late Majesty Queen Anne, intituled, ' An Act for the im-
provement of the Union of the two Kingdoms,' as after the time therein
limited requires the delivery of certain Lists and Copies therein men-
tioned to Persons indicted of High Treason or Misprision of Treason ¡"
and should also make and subscribe the declaration mentianed in an Act
of Parliament made in the twenty-fifth year of the reign of King Charles
the Second, intituled, " An Act for preventing Dangers whieh may hap-
pen from Popish Recusants ;" and should likewise take the oath usually
taken by the Governors in his Majesty's plantations, for the due execu-
tion of the offiee and trust of Captain-General and Governor-in-Chief in
and over the said eolony or península of Sierra Leone and the territories
depending thereon, and for the due and impartial administration of jus-
tiee; and further should take the oath required to be taken by Governors
of plantations to do their utmost that the several laws relating to trade
and the plantations be duly observed; which said oaths and declararions
the Council of the said colony, or any two members thereof, were thcrcby
empowered and reqnired to tender and administer unto him, and in his
absence to the Lieutcnant-Governor, if any in the place, or if none, to
such person to whom the administration of the govern;nent was corn-
mitted, in manncr as thereinafter provided ; which being performed, that
the said Governor should administerto the Chief Justice therein nominated
and appointed during pleasure, and the other members of the Council of
the said colony, as also to the Lieutenant-Governor; if any in the place, the
oaths mentioned in the first recited Act of Parliament, altered as above,
as also should cause them to make and subscribe the aforesaid declaration,
and administer to them the several oaths for the due execution of their
places and trusts; and did further give and grant unto the said Governor
full power and authority from time to time and at any time thereafter, by
himself or by any other to be authorized by him in that behalf, to ad-
minister the oath mentioned in the said first reeited act, altered as aboye,
to all and every such person or persons as he should think fit, who should
at any time pass into the said colony of Sierra Leone, or any of the
factories and settlements within his government, or should be resident or
abiding there j and that the said Governor should have full power and
authority to suspend any member of the Council of the said colony from
sitting, voting or assisting therein, if he should find just cause for so
doing j and if there should be any Lieutenant- Governor, him likewise to
suspend from the executon of his command, and to appoint another in
his stcad until his said Majesly's pleasure should be known: And did
further by the said letters-patent ordain, will and direct, that the Go-
vernor, or in his absence the Lieutenant-Governor or Commandor-ín-
Chief for the time being of the said colony, together with the
Council of the said colony, or the major part thereof shonld have fnll




518 SIERRA 'LEONE-CHARTER 01,' JUSTICE.
power and authority to make, enact and ordain laws, statutes and 01'-
dinances for the peace, welfare and good government of the said colony,
so as such laws, statutes and ordinances were not repugnant to the
laws and statutes of this realm, but as near as might be agreeable
thereto: provided that a11 such laws, statutes and ordinanees, of what
nature 01' duration soever, were within six months 01' sooner after the
making thereof transmitted by the Governor, Lieutenant-Governor, 01'
other Commander-in-Chief of the said colony for the time being, unto his
said late Majesty for his approbation 01' disallowance of the same, as also
duplicates thereof by the next eonveyance; and in case all 01' any of tbe
said laws, sta tutes and ordinances, being not before confirmed by his said
late Majesty, should at any time be disapproved and disallowed by his
said late Majesty, bis heirs and successors, and it should be so signified
undel' his 01' their sign manual and signet, 01' by order of his 01' their
Privy Conneil, unto the Governor, Lieutenant-Governor 01' other Com-
mander-in-Chief of the said colony for the time being, then that such and
so many of tbe said laws, statutes and ordinances as should be so dis-
approved and disallowcd, should from theneeforth cease, determine and
become utterly void and of uone effeet;'anything therein 01' in tlíe said
letters patent contained to the contrary thereofnotwitbstanding; provided
always, that nothing contained in the said letters patent sbould autborize
01' empower the said Governor and Council to impose any taxes 01' duties
witbin the said colony, exccpt such as might thereafter be found necessary
for making roads, ereeting and repairing publie buildings, 01' other pur-
poses of local eonvenienee and reconomy, and for the interior welfare of
the saíd colony: provided also, that no law, statute 01' ordinance, whereby
any punishment might be inflicted greater than a fine 01' imprisonment for
three months, sbould be of any force 01' effectuntil the same should receive
his said late Majesty's approbation: and did by the said Ietters patent
further wiII and establish, that all' laws, statutes and ordinances which
then 01' immediately prior to the annulling the said lottcrs patent 01'
charter of justiee therein and hereinbefore in great part recited were in
force within the said colony, whether ordained and made by the said
charter, 01' in execution of any authority thereby granted, 01' otherwise
howsoever, should be and continue of the same force and effect in the saíd
colony as if the said eharter had not been annulled and made void, except
so far as the gamo related to the territorial 01' other rights and interests
of the said Sierra Leone Company, and to the government, administration,
jurisdiction and authority of the said Company in and over the said
colony, under the said charter, until such laws, statutes and ordinances
should be expressly repealed 01' varied by sorne law, statute 01' ordinance,
to be made by the Governor, Lieutenant-Govemor 01' Commander-in.
Chief'for the time being of tbe said eolony, and the Couneil of the same,
pursuant to the powers vested in tbem by the letters patent now in recital;




SIERRA LEONE-CHARTER OF JUSTICE. 519
and that aIl judgments, decrees, sentences, orders, probates of wills,grants
of letters of administration, and other judicial or ministerial acts and pro-
ceedings, made, passed or had subsequent to the annulling of the saíd
charter, and before the publication of the lettcrs patent now in recital in
the said eolony, should be and De deemcd and taken to be of the samc
force and validity as if the said charter had not been annulled or repealed,
but still continued in force: And did further ordain, will and direct, that
the Governor, or in his absence the Lieutenant-Governor or otherCom-
mander-in-Chief of the said colony for the time being, and the Council of
the same, should have, use, exercise and enjoy all and singular the offices,
jurisdictions, powers and authorities within the said colony, which in and
by the said charter therein and hercin recited were given and grantcd to
the Governor and Council which the Court of Direetors of the said Sierra
Leone Company were thereby empowered to constitute and appoint, save
and except as was otherwise directed or provided in and by the said letters
patent now in recital. And did further thereby give, grant and appoínt,
that there should be within the said town of Freetown a body politic and
corporate, by the name and style of the Mayor and Aldermen of Free-
town; and that such body politic and corporate should consist of a Mayor
and three Aldermen, and should have perpetual succession, and should
and might be able and capable in law to suc and be sucd in any courts
and causes whatsoever, and should have a common seal for the business
and affairs of the said Corporation, which common seal they and their
successors might break and change at their pleasure; and that the pcrsons
bearing the officesof Mayor and Aldermen of Freetown at the time of the
publication of the lctters patent now in recital, by virtue of an election or
appointment made under and by authority of the said annulled charter,
though since the same was annulled, should be and continue respectively
Mayor and Aldermen of Froetowu, upon the conditions and under the
Iimitatíons contained in thc said charter; and that all the regulations and
provisions contained in the said charter i,n respcct to the annual election
of the Mayor and the determination of his office, and that of the Alder-
men, and the filling up of their places when vacant by death, absence or
removal, should be observed and carried into execution iu respect of the
said Mayor and Aldermen constituted by the letters patentnow in recital,
as fully as if the same bad been therein repeated. And did further will
and ordain that the person bearing the office of sheriff at the publication
of the letters patent now in recital, by virtue of any election or appoint-
ment made under and by authority of the said annulled eharter, should
notwitbstanding retain such office until the time appointed in the said
charter for the annual determination of such offlce, to act until the 29th
day of September then next ensuing, and should then be succeeded by a
new Sheriff, to be elected and appointed by the Governor and Council of
the said colony, at the time and in manner and form as directed by the




520 SIERRA LEONE-CHARTER OF JUSTICE.
said charter; and that the Governor and Council of the said colony should
have the same powers of electing and appointing the Sheriff as were in
and by the said annulled charter given to the Governor and Council ap-
pointed by the said Sierra Leoue Company and its Directors; and did
further direct that the said Sheriff so appointed or to be appointed as
aforesaid should execute and perform a11 sueh or the like offices and
duties, and have, possess and exercise all such or the like powers and
authorities, as the Sheriff appointed under the said annul1ed charter, while
the same remaincd in force. And did further by the said letters patent
will and appoint that the Chief Justice of the said colony during his!on-
tinuance in the said office, and his succcssors the Chief J ustices of the
said colony, should be Recorders of Freetown, and with the Mayor and
Aldermcn of Freetown for the time being, should be and they were
thereby constituted a Court of Record, by the name of " The Court of
the Recordar of Freetown," and that the said Court should have, use and
exercise the likc jurisdictions, powers and authorities in all respecta within
the said colony of Sierra Leone, ih like cases, and between the like persons
aud parties, as might have been had, usod and exercised hy the said
Mayor's Court of Freetown, under and by virtue of the said therein and
hereinbefore rccitcd charter of justice, while the same rcmaincd in full
force and virtue, except only where it was otherwise therein expressly
declared or provided; and that the said Court of the Recordar of Free-
town should also proceed in the same manner and form, and subject to
the same rules as to trial by jury and otherwise, and to the same remedy
or ríght of appeal, as were in the said therein aud hereinbefore recited
charter directed and provided in respect of the said Mayor's Court of
Freetown, except as aforesaid; and that al1rules ofpractice made by the
said Mayor's Court of Freetown, and then 01' at the time of the annul1ing
of the said charter remaining in force, should be observed and followed
in and by the said Court of the Recorder of Freetown, until by the
autbority of that court the same should be varied or repealed: provided
always, and it was thereby further ordained and directed, that the Chief
Justiee and Recorder should preside in the said court, which should he
held before him and the Mayor and Aldermen of Freetown for the time
being, or three of them at least, that is to say, either the Mayor and two
of the said Aldermen, or the three Aldermen, except when such Chief
J ustiee and Recorder was a party to or interested in any suit, aetion or
proceeding depending in the said court, in whích case it was provided that
such suit, aetion or proceeding should be adjudged, tried and determined
by the Mayor and Aldermen alone, the Mayor presiding; and if two or
more of the said J udges should be parties to 01' interested in any such
suit, action 01' proceeding, thcn that the remalning Judges of the said
court should and might adjudge, try or determine the same, the senior
Alderman presiding when the Chief J ustice an.l Rcccrder, and Mayor,




SIERRA LEONE-CHARTER üF JUSTICE, 521
should be for the reason aforesaid incompetent to sit. Provided fur-
tber, that in case of the death, absence 01' long incapacity by sickness
of the Chief Justice and Recorder, the Governor, Lieutenant-Governor
01' other Commander-in-Chief of the said colony for the time being,
should and might appoint the most competent and proper person within
the colony to act as Chief J ustice and Recorder during sueh absence 01'
incapacity, 01' in the case of dcath, until a successor should be appointed
by his said late Majesty, and should enter on the duties of the said office,
which acting Chíef J ustice and Recorder should bc competent to preside
in the said court, and to exercise all the jurisdictions, offices, functions
and authorities of the said Chief J ustice and Recorder, nntil superscded
by his return, 01' his becoming again capable, 01' by sueh new appoíntment
as aforesaid. Provided also, that in case of any difference in opinion
between the judges of the said court, touching the giving of any judgment
01' sentence, 01' the decision of any question depending before them, the
majority should determine; and further, that when opinions should be
equally divided, the Chicf J ustice and Recorder, 01' the judge presiding in
his stead, should havc a double 01' casting voice, And did furthcr direct
and appoint, that from and after the publication of the said letters patent
in the said colony at the period thcreinaftcr appointed, thc authority and
functions of the said Mayors Court of Freetown should ccase aud deter-
mine, to be thenceforth assumed and exercised by the said court of the
Recofder of Freetown; and that all actions, suits aud proceedings then
depending in the said Mayor's Court of Freetown should be respectively
transferred in their then present condition to, and subsist and depend
respectively, and be prosecuted, tried and determined respectively in the
said court of the Recorder of Freetown, just as if the same had been com-
menced respectively in the said last-mentioned court; and that all records,
muniments and proceedings whatsoever of 01' belonging to the said Mayor's
Court of Freetown, should be delivered over to and dcposited with the
records of the said court of the Recorder of Freetown; and that from and
after the same period, the saíd court of the Recorder of Freetown should
have and exercise such and the same jurisdictions, powers and authorities
to gra" probates of wills and letters of administration as were theretofore
had and exercised by the said Mayor's Court of Freetown, pursuant to
the said annulled chárter. And did fnrther will and appoínt, tbat the Go-
vernor, Lieutenant-Governor 01' other Commander-in-Chief, and Council,
for ihe time being of the said colony, should nominate and appoint a
proper person to be Accountant-General of the said eourt of the Recorder
of Freetown, who should execute and perform (he same offices, trusts,
matters and things as the Accountant-General of tbe said Mayor's Court
of Freetown was directed and empowered to execute and perform by the
said annnlled charter therein and hereinbefore recited, (save and except
as to tho direction and controul of the Court of Directors of the Sierra




5522 SIERRA LEONE-CHARTER OF JUSTICE.
Leone Company), subject to the orders of the said court of the Recorder
of Freetown, and to such directions in respect to the investment or security
of the money belonging to suitors of the saíd court, and the securing and
accounting for the same, as might be given from time to time by the
said Governor, Lieutenant-Governor or other Commander-in-Chief, and
Council, of the said colony for the time being, or by his said late Majesty
in bis Privy Council. And did further there by will and establ ish, that
the Governor, Lieutenant-Governor or other Commander-in-Chief, and
Council, of the said colony for the time being, should be, and they were
thereby constituted a Court of Record to receive, hear and determine
appeals from the said court of the Recorder of Freetown, in the like cases,
and subject to the like limitations, and rules and directions, as to theír
proceeding thercin, and subjcct also to the like right of appeal from their
judgment, sentence or deeree to his said late Majesty in his Privy Council,
wben the debt, damages or tbing or matter in dispute sbould exeeed the
value of 400l., and npon the like condition as to security to be thereupon
given by the appellant, as were in and by the said annulled ehartcr di-
rected and provided in respect of appeals to the Governor and Council
appointed by the said Sierra Leone Company or its Directora, and from
tbem to his said late MaJcsty in his Privy Council respectively. And díd
further thereby ordain, will and establish, that there should be within (be
said town of Freetown a court, which should be called "Tbe Court of
Requests for the Colon)' of Sierra Leone," and whicb sqo~ld have and
exereise sueh and tbe same jurisdiction, power and authority in all aetions
and suits brought before them, where tbe debt, duty 01' matter in dispute
should not exceed the value of 40s., in the same way," and subject to the
same rules and regulations, as were in and by the said reeited letters
patent or ebarter of justiee mentioned, contained and provided in 'respect
of the Court of Requests thereby constituted, And did further ordain
and appoint that the Governor, Lieutenant-Governor or Commander-ín-
Chief, and the members of tbe Couneil of (be said colony for the time
being, sbould be, and the same were thereby constituted and appointed to
be justiees of tbc peace in and for the said town of Freetown, througbout
the said colony of Sierra Leone and all the territories dependent thereon,
with all sueh and tbe same jurisdictions, powers and authorities as lawfully
could 01' might be exercised by justiees of the peace duly constituted by
bis said late Majesty in tbat part of the United Kingdom called England,
within the county, city 01' town eorporate for which they were so consti-
tuted, so far as the laws of this realm were applieable to and in force in
the said colony, And did further ordain, will and establish, tbat the
Chief Justice and other members of Council of the said colony for the
time being (without the Governor, Lieutenant-Governor or Commandcr-
in-Chief) should and might hold quartcr-scssions of thc peace four times
in the year within the said colony, and should from time to time and at




SIERRA LEúNE-CHARTER OF JUSTICE. 5~3
all times thereafter be Commissioners of Oyer and Terminer and Gaol
Delivery, for the trying of all crimes and misdemeanours had, committed
01' done, 01' to be had, committed 01' done within the saíd town of Free-
town 01' elsewhere within the said colony of Sierra Leone, 01' any tcrritory
dependent thereon; and that it should and might be lawful to and for the
saíd Justices of the Peace and Comrnissioners of Oyer and Terminer and
Gaol Delivery respective1y, to proceed by indictment, 01' by such othcr
ways and means, and in the same 01' likc manner, as were used in that
part of the United Kingdom called England, as near as thc condition and
círcumstanccs of the said colony and the inhabitants thereof would admit
of; and for those pUl'poses to issue their warrants 01' precepts to the sheríff
of the said colony for the time being, commanding him to summon a con-
venient number of the principal inhabitants within the said colony to serve
and attend as grand and petty jurors at the said courts respectívely ; and
that the said J ustices of the Peace and Commissioners of Oyer and Ter-
miner and Gaol Delivery respectively should and might administer to
such jurors the oaths usuaUy taken in England by grand and petty jurors
respectively, and also should and might administer a proper oath 01' affir-
mation to the witnesses who should be produced for 01' against the party
accused; and that the said J ustices and Commissioners should and mighl
respectivcly proceed to thc arraignment, trial, conviction and punishment
of persons accused of any crimes 01' offences, in the same 01' the like
manner and for!,1l, as ncar as the condition and circumstances of the place
and inhabitants would admit of, as any Justices of the Peace 01' Commis-
sioners of Oyer and Terminer and Gaol Delivery usually and lawfully do
within that part of the United Kingdom called England; and that the
saíd courts might assemble and adjourn at and to such times and places
as they might adjudge convenient, And did further direct and appoint,
that as well the said J ustices of the Peace and Commissioners of Oyer and
Terminer and Gaol Delivery, as the said Chief Justice and Recorder, and
other Judgcs of the said Court of thc Rceorder of Freetown, should prior
to their enteríng upon the exccution of their said respective offices take
an oath before the Governor, Lieutenant-Governor, 01' Commander-ín-
Chief, and Council, for the time being, faithfully to execute their said
respective offices, together with the oath of allegience, whích oaths the
said Governor, Lieutenant-Governor, 01' Commander-in-Chief, and Council,
for the time being were thereby empowered to administer. And did fur-
ther by the saíd letters-patent give and grant unto the Goveruor of the
said colony for the time being full power and authority from time to time
to constitute and appoint aIl such officers and ministers as might be
necessary in the said colony for the better administration of justice and
puttíng the laws in execution, and for whose appointment his said late
Majesty had not otherwisc thereín provided, and to administer 01' cause to
be admínístered to them the usual oath 01' oaths for the due cxecution of




5B4 SIERRA LEOSE-CHARTER OF JUSTICE.
theír respective offices. And did thereby further give and grant unto the
said Governor full power and authority, when he should see cause, 01'
should judge any offender 01' offenders, in criminal matters, 01' for any fines
01' forfeitures due unto his said late Majesty,. fit objects of his mercy, to
pardon a11 such offenders, and to remit all such offences, fines and for-
feitures, (treason and wilful murder only excepted,) and that in such cases
he should have power upon extraordinary occasions to grant reprieves to
the offenders, until and to the intent that his said late Majesty's pIeasure
might be known therein. And did further authorize and empower the
said Govcrnor to collate any person 01' persons to any churches, chapels 01'
ecclesiastical benefices within the said colony, as often as any of tht!ñi
should happen to be void. And did further give and grant untothe said
Governor, by himself, 01' by his captaíns and commanders hy him to be
authorized, full power and authority to levy, arm, muster, command and
employ all pcrsons whatsoever residing within the said colony and the
tcrritories dependent thcreon, and as occasion should demand to march
them from one place to another, 01' to embark them, for the resísting and
withstanding of all enemies, pira tes and robels, both at sea and land, and
such enemies, pirates and rebels, if there should be occasion, to pursue
'and prosecute in 01' ont of the limits of the said colony; and if it should
so please God, them to vanquish, apprehend, and take, and being taken,
either according to law to put to death, 01' to keep and preserve alive, at
his discretion; and to execute martial law in time of invasion, war, 01'
other times when by law it might be executed, and to do and execute all
and every other thing and things which to tbe Captain-General and
Governor-in-Chief of the said colony did or of right should belong; And
did further give and grant unto the said Governor full power and autho-
rity, by and with the advicc and consent of the said council, to erect,
raise, and build in the said eolony of Sierra Leone, and the territories
depending thereon, such and so many forts and platforms, castles, cities,
boroughs, towns, and fortifications, as he by the advice aforesaid should
judge necessary, and the same 01' any part of them to fortify and furnish
with ordnance, ammunition, and aH sorts of arms fit and necessary for the
security and defence of the said colony, and by the advice aforesaid, the
same again, or any of them, to demolish 01' dismantle, as might be most
convenient: And forasmuch as divers mutinies and disorders might
happen hy persons shipped and employed at sea during the time of war,
and to the end that such as should be shipped and cmployed at sea
during the time of war might be better governed and ordered, his said
late Majesty did by the said letters-patent give and grant unto thc said
Governor of the said colony full power and authority to constitute and
appoint eaptains, licutenants, masters of ships, and othcr commanders and
officers,and to grant to such captains, licutenants, masters of ships, and
other commanders and officers, comrnissions to execute thc law rnartial




SIERRA LEONE-CI1ARTER OF JUSTICE. 525
during the time of war, according to the directions of an act passed in the
twenty-second year of the reign of his said late Majesty King George
the Second, intituled " An Act for amending, explaining, and rcducing
into one Act of Parliament the laws relating to the government of His
Majesty's ships, vessels, and forces by sea," as the same is altered by an
act passed in the nineteenth year of the reign of his said late Majesty
King George the Third, Our royal father, intituled " An Aet to explain
and amend an Act made in the twenty-second year of the reign of his
late Majesty King George the Second, intituled ' An Aet for amending,
explaíning, and redueing into one Act of Parliament the laws relating to
the government of His Majesty's ships, vessels, and forces by sea;' " and
to use such proceedings, authorities, punishments, correctíons, upon any
offender or ofrenders who should be mutinous, seditious, disorderly, or any
way unruly, either at sea or during the time of their abode and residenee
in any of the ports, harbours, or bays of the said colony, as the case
should be found to require, aceording to martiallaw, and the said direc-
tions during the time of war as aforesaid: Provided that nothing therein
contained should be construed to the enabling of him, or of any by his
authority, to hold pIca or to have any jurisdietion of any oflence, cause,
matter or thing eommitted or done upon the high sea, or within any of
the havens, rivers, or creeks of the said colony and territories under his
government, byany captain, lieutenant, eommandcr, master, officer,
seaman, soldier. or other person whatsoever, who should be in his said
late Majesty's actual service and pay, in or on board of any ship of war
or other vessel acting by immediate eommission or warrant from the com-
missioners for exeeuting the office of lord high admira! of the United
Kingdom of Great llritain and Ireland, or from the lord high admiral
for the time being, under the seal of the admira!ty; but that such captain,
commander, lieutenant, máster, officer, seaman, soldier, or other person so
ofrending should be left to be proeeeded against and tried as their offenees
should require, either by commission under the great seal of the United
Kingdom of Great Britain and Ireland, pursuant to the statute of the
twenty-eighth of Henry the Eighth, or by eommission from the said
eommissioners for executing the office of lord high admira! for the time
being, according to the afore-mentioned aet, intituled "An Act for
amending, explaining, and reducing into one Act of Parliament the laws
relating to the government of his Majesty's ships, vessels, and forecs by
sea," as altered and amended by the said aet passed in the nineteenth
year of the reign of his said late Majesty, and not otherwise; provided
nevertheless, that all offences and misdemeanors commítted on shore by
any captain, commander, lieutenant, master, officer, seaman, soldier, or
other person whatsoever, helonging to any ship of war or other vessel
aeting by immcdiatc eommission or warrant from the said commissioners
or lord high admiral for the time being as aforesaíd, might be tried and




5Q6 SIERRA LEONE-CIIARTER OF JUSTICE.
punished according to the laws of the place where any such offences or
misdemeanors should be so committed on shore, notwithstanding such
offenderswere in bis said late Majesty's actual service, and borne in hís
pay on board any such ship of war 01' other vessels acting by immediate
cornmission or warrant from the said eommissioners 01' lord bigh admiral
for the time being as aforesaid, so that such offender sha11 reeeive no pro-
tection for the avoiding of justice for sueh offences so committed on
shore, from any pretenee of his being employed in his said late Majesty's
service at sea: And did fnrther will and appoint that all public monies
which should be raised by any law, statute, 01' ordinance to be thcreafter
made within the said colony, should be issued out by warrant from the
said governor, by and with the advice and consent of the council of the
said colony, and disposed of for the purpose direeted and appointed by
such law, statute, or ordinance, and not otherwise: And did further give
and grant unto the said Governor full power and authority, by and with
the advice and consent of the said council, to settle and agree with the
inhabitants of the said colonyfor such lands, tencments, and hereditaments
as then were orthereafter should be in his said late Majesty's power to
dispose of, and them to grant to any person or persons, upon such terms,
and under sueh moderate quít-rents, services and acknowledgments to be
thereupon reserved unto his said late Majesty, as he the said Governor,
by and with the advice aforesaid, should think fit; which said grants were
directed to pass and be sealed by the seal of the said colony, and being
entered upon record by sueh officer 01' officers as were 01' should be
appoínted thereunto, were declared to be good and etreetual.in law against
his said late Majesty, his heirs and successors: Provided always, and it
was thereby further ordained, that no grant, lease, or demise at any time
theretofore made by 01' under the authority of the said Sierra Leone
Company, prior to the said surrender to bis said late Majesty of their
territorial rights and interest in the said colony and its dependencies,
pursuant to the Act of Parliament aforesaid, whether the same were by
deed 01' writing, 01' by parol only, should be in any manner impeaehed 01'
avoided, but that the same should be and be taken to be as valid and
eflectual, to all intents and purposes, against his said late Majesty, his
heirs, and successors, as if the said surrcnder pursuant to the said Act of
Parliament therein and bereinbefore recited had not been made; and that
a11 such grants, leases, and demises of lands 01' tenements witbin the said
eolony, should be confirmed by the said Governor under the seal of the
said colony, if the grantees, lessees, 01' parties beneficiaIly interested
therein shouId apply for and request such confirmations: And did further
give and grant unto the said Governor fu11 power and authority to order
and appoint fairs, marts, and markets; and also such and so many ports,
harbours, bays, havens, and other places for the convenience and security
of shipping, and for the better loading and unloading of goods and mer-
chandize, in such and so many places as by him, by and with the advice




SIERRA LEONE-CHARTER OF JUSTICE. 527
of the said councíl, should be thought fit and necessary: And did further
require and command all offieers and ministers, civil and military, and all
other inhabitants of the said colony and the territories dependent thereon,
to be obedient, aiding and assisting unto the said Governor, in the execu-
tion of the several powers and authorities in the said letters patent con-
tained; and in case of his death or absence out of the saíd colony and
the territorios dependent thercon, to be obedient, aiding, and assisting
unto such person as should be appointed by his said late: Majesty's Lieu-
tenant-Governor or Commandcr-in-Chief of the said colony for the time
being, to whom his said late Majesty did by the same give and grant all
and singular the powers and authorities therein granted to the governor
of the said eolony, to be by him executed and enjoyed during pleasure, or
until the arrival of the Governor within the said colony; and if, upon the
death 01' absence of the Govemor from the said colony and territories
dependent thereon, there was no person in the place commissioned by
his said Majesty to be Líeutenant-Governor or Commander-in-Chíef of the
said colony, then that the member of council next in seniority to the Chief
Justice for the time being (to whieh Chief Justiee his said late Majesty did
by the said lettcrs-patent grant rank and preeedeney aboye and before all
subjccts whomsoever in the saíd colony, the Governor, Lieutcnant-
Governor, 01' other Commander-in-Chíef of the said eolony for the time
being only excepted ; and that the said Chief J ustiee should be u member
of council by virtue of his office, and preside therein in the absence of
the Governor or Lieutenant-Governor; provided always, that he should
in no case succeed to the chief command of the said colony), who should
be resident within the said colony, should tale upon him the administra-
tion of the goverl1mentof the said colony, and execute the several powers
and authorities contained in the said letters-patent until the return of the
saíd Governor, if absent from the said colony, or until, in case of the
death of the said Governor, his said late Majesty's further pleasure were
known therein. And whereas, byan Act of Parliamentmade and passed
in the first and seeond year of our reign, iritituled " An act for abolishing
the African Company, and transferring to and vesting in his Majesty all
the Forts, Possessions, and Property now belonging to or held by them,"
it was, among other things, enaeted, that from and after the 3d day of
July, 1821, the said corporation of the company of merchants trading to
África should whoHy cease and determine and be abolished, and the
said Company of Merchants trading to Africa should no longer be
or be deemed to be a body politic or corporate; and that all grants
made to the said Company by or under or in pursuance of certain
therein recited Acts of Parliament, or any or either of them, or in
pursuance of any thing therein contained, should, and the same were
thereby declared to be thenceforth null and void; and that the saíd
Company should be, and the said Company wcre thereby divested of
and from all forts, castles, buildings, possessions, or estate or rights which




528 SIERRA LEONE-CHARTER OF JUSTICE.
were given to the said Company by or under or in pursuance of the said
therein recited acts, or auy or either of them, 01' which had heen since
purchased or otherwise acquired by the said Company in addition thereto,
or which then were possessed or claimed or held by the said Company on
the said coast; and that the said forts, castlcs, buildings, possessions,
estate, and rights so acquired, possessed, enjoyed 01' claimed, or then hcld by
the said Company, should thenceforth be, and the same and every of them
were, and were thercby dcclared and cnactcd to be fully and absolutely
vested in us, our hcirs, and successors for ever : And whercas it wasfurther
enacted in and by the said Act of Parliamcnt, that from and after the
passing of that act, it should and might be lawful fur us to order and direct
that all or any of the forts and possessions therein and hcreínbefore-men-
tioned, and also any territories, islands, or possessionson thc west coast of
Africa, between the twentieth degree of north latitude and the twentieth
degree of south latitudc, which then did or at any time thereafter should
or might belong to us, sllOuld be annexed to or made dependencics on the
colony of Sierra Leone; and that from the date of their being so anncxed
or made dependencies on the said colony, thcy should be subject to all
such laws, statutes, and ordinances as should be in furce in the said
colony, or as should at any time thereafrer be made, enacted, or ordained
by the Governor and Council of the said colony, and should not be dis-
allowed by us, in the sarne manner as if the said forts, possessions, terri-
tories, or islands had original!y formed part of the said colony of Sierra
Leone: Now know ye, that we, having considered the premises, and
being willing and desirous to provide for the future good government, as
well of the said forts and possessions so heretofore acquired, purchased,
enjoyed, clairned, or held by the said African Company, as of all and
every other the territorios, islands, or possessions on the west coast of
Africa, between the twentieth degree of north latitud e and, the twentieth
degree of south latitude, which now do or at any time hereafter shall or
may belong to us, out" heirs, and successors, do by these presents, by
virtue and in pursuanee of the said recited act, and of our special grace,
certain knowledge and mere motion, order, direct, and appoint, that al!
and every of the said forts and possessions so heretofore acquired, pur-
chased, enjoyed, claimed, or held by the said African Company, and also
al! territories, islands, and possessions which now do or at any time here-
after shall or may belong to us, uur heirs, and successors, on the west
coast of África, between the twentieth degree of north latitude and the
twentieth degree of south latitude, shall be annexed to and made dependen-
cies on, and the same are hereby annexed to and made dependencies on
the said colony of Sierra Leone; and that from the publication of these
presents in the said colony of Sierra Leone, as bereinafter directed, the
same shall be and they are hereby made subject to al! such laws, statutes,
and ordinances as shall be in furce in our said colony, 01' as shall al any
time hereafter be made, enacted, or ordained by the Governor and




SIERRA LEONE-CHARTER OF JUSTICE. SQ9
Council of the said eolony, and shall not be disalIowedby us, our heirs,
and successors, in the same manuer as if the said forts, possessions, terri-
tories, 01' íslands had originally formed part of the said colony of Sierra
Leone: And we do further by these presents, for us, our heirs, and suc-
cessors, wiIJ, establish, and ordain, that from and after the publieation of
these presents, there shall be nino 01' more councillors, advising and
assisting to our Governor of our said colony of Sierra Leone for tbe time
being: And we do by these presents nominate, make, ordain, and con-
stitute our trusty and weIl-beloved Edward Fitzgerald, our chief justiee,
01' our chief justice of our said eolony for the time being; our trustY and
well-beJoved Daniel Molloy Hamilton, our advoeate, 01' our advoeate of
our said eolony for the time being; our trusty and welI-beloved Dudley
Ferlday, our secretary, 01' our seeretary of our said colony for the time
being; our trusty and well-beloved Thomas Stuart Buckle, our surveyor
of lands, 01' our surveyor of lands of our said colony for the time being ;
our trusty and weIl-belovedKenneth Macaulay, esquire, our trusty and
well-beloved Alexander Grant, esquire, our trusty and well-beloved
Joseph Reffell, esquire, our trusty and weIl-beloved John O'Neill Walsh,
esquire, OUl' trpsty and weIl-beloved Thaddeus O'Meara, esquiro, our
trusty and well-beJoved Andrcw Nieoll, doctor of mcdicine, our trusty and
welI-beloved J ohn Hopc Smith, esquiro, and our trusty and well-beloved
William Dawson, csquire, tbenceforth councillors of our said colony, to
continue in their said officeof councillors during their naturallives, unless
suspended from their said office, 01' absent from the said colony for the
space of one year without leave given them under our royal signature, 01'
until otber eouneillors shall be chosen and appointed by us, under our
signet and sign manual, in tbeir stead: And we do further hereby give
and grant to our said Governor fuIl power and anthority to suspend any of
tbe members of onr said councíl from sitting, voting, 01' assisting therein,
if he shall find just cause for so doing; and if it shall at any time bappen,
that by the death, dcparture out of our said colony, 01' suspension of our
saíd councillors, 01' otherwise, there shall be a vacancy in our said council,
(any five whereof we do hereby appoint to be a quorum.) our will and
pleasure is that our said Governor do signify the same unto us by tbe first
opportunity, that we may, under our signet and sign manual, constitute
and appoint others in their stead ; but, that our affaire at that distance
may not suffer from want of a due number of councillors, if ever it shall
happcn that there be less than nine of them residing in our said colony,
we do hereby give and grant nnto our said Governor full power and
authority to choose as many persons out of the principal inhabitants
thereof as shall make up the full number of our said council to be nine,
and no more; which persons so chosen and appointed by him shaIl be to
all intcnts and purposes counciIJors in our saíd colony, until either they
shall be confirmed by us, 01' that, by the nomination of others by us uuder


MM




530 SIERRA LEO!':E-CHARTER OF JUSTICE.
our sign manual and signet, our said council shall have nine or more
councillors in it resident in our said colony: And we do further by these
presents ordaín, will, and appoint, that our Governor of our said colony,
or in his absence, our Lieutenant-Governor or Commander-in-Chief for
the time being of our said colony, together with our council of the same,
or the major par! thereof sha11 have full power and authority to mak~,
constitute, and ordain laws, statutes, and ordinances for the public wel~
fare and good government of our said colony, under the líke cónditions,
and subject to the same limitatíons and restrictions, as those imposed in
tbat behalf on the Govemor and council of our said colony in the letters-
patent of his said late Majesty hereinbefore recited; but, to the end that
nothing may be done or passed to the prejudice of us, our heirs, and
successors, by our said council, we further ordain by these presents, that
our Governor of our said colony, or in his absencc, our Lieutenant-
Governor or Commander-in-Chief for the time being, may and shall have
a negative voice in the making a~d passing of all laws, statutes, and
ordinances as aforesaid: And we do further by these presents will, ordain,
and appoint, that from ánd after the publication of these presents in our
said colony of Sierra Leone, as hereinafter directed, our court of record in
our said colony, caIled and known by the name of "The Court of the
Recorder of Freetown," shall consistof our chief justice of the said colony
for the time being.and twosuch members ofthe councilasshall beappointed
by the Governor of our said colony for the time being assistant judges
thereof, in lieu of the mayor and aldermen of Freetown for the time
being, as ordained and appointed in and by the letters patent of his saíd
late Majesty hereinbefore recited; and we do hereby wiIl and ordain,
that they or any two of them (whereof our said chief justice for the
time being residen! in Freetown to be one), shall, and the same are
hereby authorized to hear and determine al! civil suits, actions, and pleas
between party and party that shall or may arise or happen, or that have
already arisen or happened within our said colonyof Sierra Leone, or any
of the forts, settlements, islands, or territories subject or subordinate
thereto, except when the cause of eetion or suit she.ll not eseeed the
value of 408.: Provided always, and it is hereby further ordained and
directed, that if such chief justice and recorder, 01' sny of the saíd as-
sistant judges, should be any ways interested in the event of any such
action or suit, no such chief justice and recorder 01' assistant judge,
sha11 sit or act as a judge in such suit or action, but the same shall be
heard and determined by such of them as shaIl be no ways interested
therein; and in all cases where the number of voices shaIl be equal in
the determination of any action or suit, the chicf justice, or in his ab-
sence the senior assistant judge present, shall have two voices: And
we do furtber direct, that the said Court of the Recorder of Freetown
hereby constituted shall proceed in thesame manner and form, and sub-




SIERRA LEONE-CHARTER OF JUSTICE. 531
ject to the same rules as to trial by [ury and otherwise, and to the same
remedy and right of appeal, as were in and by thc said letters patent
hereinbefore recited, direeted, and provided in respect of the Court of the
Recorder of Freetown, constituted by such letters patent; and that aIl
rules of practice made by the one court, and now 01' at the time of the
publication of these presenta remaining in force, shaIl be observed and
followed in and by the other, until by the authority of that other the
same be varied 01' repea1ed: And we do further will and direct, that no
action, cause, suit, 01' proceeding depending in the said Court of the
Recorder of Freetown at the pubJication of these presents, shall be
avoided, abated, discontinued, 01' annuIled for 01' by reason'of any change
in the constitution of the said court effectedby these presents, but that
the same shall be respectively transferred in their then present condition
to, and subsist and depend respectively, and be prosecuted, tried, and de-
termined respectively, in the said Court of the Recorder of Freetown
hereby constituted and established to aIl intents and purposes as if they
had been respectively first commenced, had, brought, and prosecuted in
the said last-mentioned court: And we do further wiIl and direct, that
each person so nominated 01' appointed one of the assistant judges of
the said Court of the Recorder of Freetown as aforesaid, shall, prior to
the entering UpOll the execution of his said office, take an oath before
the Governor, Líeutenant-Governor, 01' other Commander-in-Chief for
the time being, for the due discharge of the same, which oath the said
Governor, Lieutenant-Governor, 01' Commander-in-Chief for the time
being, is herebyempowered to administer: And we do further by these
presents will and establish, that our said Governor, Lieutenant-Governor,
01' other Commander-in-Chief, and couneil, of our said colony for the
time being shaIl be, and they are hereby constituted a court of record to
receive, hear, and determine appeals from as weIl the said Court of the
Recorder of Freetown, as from any other superior court of common law
now established 01' to be in future establíshed in our said colony pursuant
,to these presents, in the like cases, and subjeet to the like limitations,
rules, and direetions as to their proeeedings therein, and subject also to
the like right of appeal from their judgment, sentenee, 01' deeree, to us
in our Privy CouneiJ, when the debt, damages, 01' things, 01' matter in
dispute sball exeeed the value of 400l., and upon the like eondition as to
seeurity to be thereupon given by the appellant, as were in and by the
said letters patent hereinbefore recited, direeted, and provided in respeet
of appeals to the Governor and Council of tbe said colony, and from
them to hís said late Majesty in his Privy Councilrespective1y: Provided
always, and it is hereby ordained, that no sueh member or members of
our said counciJ as shaIl be at that time judge 01' judges of the eourt from
which such appeal shall be made, ,shaIl be entitled 01' permitted to vote
upon such appeal j provided also, that no appeal be allowed from any


}! M 2




532 SIERRA LEONE-CHARTER OF JUSTICE.
sentence, order, or decree of our Courts of Chancery of our said eolony,
to us or oar Privy Couneil, uuless the debt, damage, or thiug or matter
in dispute, sha11 exeeed the like sum or value of 4001. sterling j and that
such appe11ant do also give good security that he will effectuallyproseeute
such appeal, and answer the condemnation money, and pay also such
costs and damages as sha11 be by us awarded in case sueh sentence, order,
or decree so appealed from be affirmed: Provided nevertheless, and our
further will and pleasure is, that when the matter in question relates to
the taking or demanding of auy duty payable to us, or to any fee of
office or anuual rent, or other such like matter or thing, where the right
in future may be bound, in a11 such cases an appeal may be had from the
judgment of our saíd Governor and Council as aforesaid, or from the
sentence, order, or decree of our Court of Chancery of our said colony, to
us in our Privy Couneil, though the immediate sum or value appealed for
be of a less amount than 4001. sterling: And our further pleasure is, and
we do hereby direct and appoint, that our said Govemor shall and may
keep and use the public seal of our said colony of Sierra Leone for seal-
ing all instruments whatsoever that do and ought to pass the great seal
of our said colony under his said government: And whereas writs of in-
quiry uf idiots and lunatics may and ought to issue out of our Court of
Chancery in our said colony, and be rcturuable in our said court, and
great trouble and charges may arise if occasion be to resort unto us, our
heirs and successors, for directions respecting such idiots and lunaties,
and their estates, we do by these prcsents give and grant unto our said
Governor full power and authority to give orders and warrants from time
to time for preparing grants of the custodies of such idiots and lunatics
and their estates, as are or shall be found by inquisition thereof, taken or
to be taken, and returned or to be returned into our said Court of Chan-
cery of our said colony, and thereupon to make and pass grants and
commitments under our great seal of our said colony, 01' the custodies of
all and every such idiots and lunatics and their estates, to such person or
persons, suitors in that behalf, as according to the rules '01' law, and the
use and practice in those and the like cases, he shall judge meet for that
trust j the saíd grants aud commitments to be made in sueh manner and
form, or as nearly as may be, as hath heretofore bcen used and accus-
tomed in making the same under the great seal of this kingdom, and to
contain sueh and the like apt and couveuient coveuauts, conditions, and
agreements on the part of the eommittees and grantees to be performed,
and sueh security to be by them given, as sha11 be requisite and needful :
And we do further by these presents order, direct, and establish, that
from and after the expiration 01' three months from the publieation of
these prcsents hereinafter directed, the authority of the Court of Re-
quests for the colony of Sierra Leone, for thc reeovery of small debts
within the said COIOIlY, as constitutcd by the letters J:atent of his said late




SIERRA LEONE-CHARTER OF JUSTICE. 533
Majesty hereiubefore recitcd, shall cense and he abolishcd : And.we do
by theso presents authorize and require our said Governor, by and with
the ad vice and concurrence of our said couneil, prior to rhe expiration
thereof, to nominate and appoint certain justices 01' uthers commissioners
in and for particular districts, npon whom the authority of the said
court thenceforward to cease and be abolished in and throughout the
said colony as aforesaid may regularly devolve ; and that the said jus-
tices 01' other commissíoners may and shal! proceed to the hearing and
determining of al! matters of debt or damage under 40s. value, in the
same or the like manner and form, as near as circumstances will admit
of, as any commissioners of rcqucsts usually and lawfuJly do within that
part of our united kingdom called England j and that such commissi-
oners shaJl assemble at sueh times and plaees as our said Governor, with
the advice and concurrence of our Council as aforesaid, shal! from time
to time appoint: And we do further hereby direct and establísh, that
from and after the publication of these presents, our Governor, Lieute-
nant-Governor, 01' Commander-in-Chíef for the time being of our said
colony, shall and may do, execute, aud perform aJl that is necessary for
the granting of licences for marriages, as also for the probate of wilIs
and granting of ndministrations for, touching 01' concerning any interest
01' estate which any person 01' persons shalI have within our said colony
01' its dependencies, in such 01' the 1ike manncr and form as our Go-
vernors, Licutenant-Govemors, 01' other Commanders-in-Chief of our
provinces in America, are used and authorized to do, execute, and per-
form the same : And our further will and pleasure is, that from thence-
forth such jurisdictions, powers, and autborities as were given to tbe
Court of the Recorder of Freetown aforesaid, and to the said Mayor of
Freetown, in and by the said letters patent hereinbefore recited, in re-
spect to grants of probates of wiUs and letters of adrninistration, shaU
cease and determine; but we do nevertheless wiU and ordaín, that no
probates issued 01' letters of admiuistrajion granted in the said eourt
pursuant to the provisions of the said letterspatent, prior to the publica-
tion of these presents, shall be impeached or avoided by the cessation of
the authority and functions of the said court in the premises, but that
the same shall, and the same are hereby ordaíned to remain in as fuU
force and effect as if the saíd court still possessed the powers and autho-
rities to grant probates of wills and Ietters of administratÍon conferrcd
UpOIl it by the said letters patent: And we do further by these presents
give and grant unto our said Governor full power and authority, with the
advice and consent of our said Council, to erect and constitute judica-
toríes and courts of record, 01' other courts, to be held of us, our heirs
and successors, for the hearing and dctermining all and all manner of
causes, as well criminal as civil, arising 01' happening within our said
colony, 01' betwccn pcrsons inhabiting 01' residing there ; as also to issue




534 sIERRA LEONE-CHARTER OF JUSTICE.
from time to time specíal commíssions of oyer and terminer and gaol de-
livery, limited to the districts and crimes or misdemeanors specified in
such commissions, and for the awarding and making out execution there-
upon; to which conrts and judicatories we do hereby give and grant full
power and authority from time to time to administer oaths for the better
discovery of'truth in any matter in controversy or depending before them,
together with all other reasonable and necessary powers, authoritíes, fees,
and privileges belonging thereto: And we do herehy further give and
grant unto our said Governor full power and authority to constitute and
appoint judges, and in cases requisite, commissioners of oyer and ter-
miner, justices of the pcace, and other necessary officers and ministers
in and through our said colony, for the better administration of justice
and putting the laws in execution, and to administer or cause to be ad-
ministered to them their several and respective oaths for thedue and
faithful performance of their dutí"es in their several and respective offices,
before undertaking the execution of the same; provided nevertheless,
and be it further ordained, that no election or appointment of any sheriff
or other officer or minister, pursuant to these presenta, shall or shall be
deemed or construed to alter or abridge the power and nght of the sheriff
of our said colony, appointed pursuant to the letters patent hereinbefore
recited, to summon juries, or to execute and make return of all pro-
cesses and the like, of the said Court of the Recorder of Freetown, or
of any other courts erected or to be erected within that tract or district
known .by the name of the Peninsula of Sierra Leone, bounded as afore-
said: Ana in case of the death, absence, or removal of 011r Lieutenant-
Governor of our said colony, we do further by these presents authorize
and empower our Governor of our said colony, being at the time of such
appointment personally resident within our said colony, to nominate or
appoint any person resident within our said colony, whom he shall judge
the most proper and fitting, lo be our Lieutenant-Governor thereof, until
our pleasure thereupon shall be known; províded it shall appear to our
said Governor that the administration of the government of our said co-
lony, by the member of our said council next in seniority to the chief
justice thereof for the time being, may not tend to the good of our ser-
vice and the welfare of our said colony : And we do further ordain, will,
and establish, that wíthin thirty days after these presents shall arrive
within our said colony of Sierra Leoue, our Governor, Lieutenant-Go-
vernor, or other Commander-in-Chicf of our said colony for the time
being, shall cause these our letters patent to be published and proelaimed,
and the contents thereof to be publicly known within the said colony,
and that from and immediately after such publication the same shaU be
in full force and effectwithin our said colony: Provided always, and we
do hereby reserve unto ourself, our heirs aud succcssors, fuU power and
authority to revoke, vary, alter, annul, and make void these presenta, and




SiERRA LEON'E-CHARTER OF JU8TICE. 535
every 01' any clause, malter, 01' thing herein conlained, aud to make such
new, other, 01' further ordinances and appointments for the government
of our said colony, and for the administratíon of justice within the same,
as lo us, our heirs and successors, in that behalf shall seem meet: And
we do lastly by these presenta, for us, our heirs and succcssors, direct
and appoint that our Governor of our said colony of Sierra Leone, and
his successors the Governors thereof, during our royal wil! and pleasure,
mayand shall have and exercise the several powers and authorities given
and granted to thern by these presents, together with and superadded to
the several powers and authorities conferred on the Governor of the saíd
colony by the letters patent of his late Majesty King George the Third,
our dearest father, hereinbefore reeited; and that the eonstitution and
laws of our said eolony of Sierra Leone, and all judicial and municipal
authorities therein, shall for the present and during our royal wil! and
pleasure, eontinue such as they were eonstituted and appointed to be by
the said letters patent of his said late Majesty, 01' under the authority
thereof, so far as the possessions heretofore held by the Afriean Com-
pany, and also the territories belonging to us, our heirs and successors,
on the west coast of Afriea, between the twentieth degree of north Iati-
tude and the twentieth degree of south latitudc, being annexed by these
presents to our said colony of Sierra Leone, and other changes of cir-
cumstances within our said colony, whether eonsequent upon the same
01' howsoever accruing, wil! permit, and save aIso and except as the same
are altered by these presents. In witness, &c., witness, &c., the 17th
day of October,


By Writ of Privy Seal.


Examinad with the record in the Petty Bag Office in the Conrt of
Chancery, the 22d day of April, 1834. -


J. BENTALL.




( 536 )


COLONIES IN rrHE INDIAN SEAS.


CEYI.. üN.


-


CEYLON is an island in the East Indies, lying between
the sixth and tenth degrees oí north latitude, and the·
seventy-ninth and eighty-second degrces of east longi-
tude, It is situated at theentrance of the Bay of Ben-
gal, by which it is bounded on the north. On the north-
west it is separated from the Coramandel coast by the
Gulf of Manaar, a narrow strait full of shoals and im-
passable by large ships. It is distant about sixty miles
from Cape Comorin, the southern part of the peninsula
of India. Its breadth is unequal at different places, but
its whole circumference is computed to be about 900
miles. The smaIl island of Jaffnapatam is situated at its
northern extremity, and forms part of the district of that
name. Trincomalee líes on the north-eastern part of the
island ; Batticaloa on its eastern coast; and Colomba on
its south-western, Kandy, the capital, is nearly in the
centre of the island, which in shape somewhat resembles
an egg peal'. The general aspect of the country is
hiUy, the richness of its produce is very considerable, and
various travellers have spoken of its beauty in terms of
almost extravagant admiration. The northern part of the
island is said frequently to suffer in its agriculture for
want of rain, and to be sickly in consequence of a deficient
supply of water. The climate on the whole is much more
temperate than on the continent of India, at least where
the sea breezes have room to circulate. The principal
harbours are Trincomalee, Point de Galle, and the Roads
of Colombo.


The cinnamon tree is indigenous to the island, and it is
said that there are annually gathered two crops of oranges,
and that almost all the West India fruits, together with




CEYLON. 537
sorne that are peculiar to Ceylon, grow in abundance and
come to great perfection.


HISTORY AND CONSTITUTION.


The first knowledge of the existencc of this island ap-
pcars, according to Arrían, to have been brought into
Europe by Nearchus and Onesicritus, who were comman-
ders of the fleet that Alexander despatehed from the Indus
to the Persían Gulf. Still however little was known of the
state of the island till the reign of the Emperor Claudius,
when the collector of the Roman customs in the Red
Sea having been driven by a storm uponit, he gave sueh
an aeeount of Rome to the Oeylonese monarch that the
latter despatched four ambassadors thither. In the latter
part of the thirteenth century Ceylon was visited by
Marco Polo, who, on his return, publishcd an account of
it, which was deemed, in many parts, to be fictitious, till a
further acquaintance with the island proved the general
accuracy of the statements made by the Venetian travcllcr, -
About half a century afterwards, Ceylon was visited by
Sir John Mandeville, whose account of thc place was
however not published till 1588. In the year 1505 the
island was first visited by the Portuguese under Lorenzo
D'Almeida, the son of the Vieeroy of Goa, who had been
sent by his father to intercept some Moorish vesseIs in
passing the Maldives. Even upon their first visit the
Portuguese appear to have had address enough to pro-
cure a treaty of allianee, by which the Portuguese gua-
ranteed to deferid the Emperor against all his enemies,
while he undertook to pay his new allies an annual tribute
of ~50,OOO pounds of cinnamon. Don Lorenzo erected
on the shore of the Bay of Galle a marble pillar, on
whieh were engraven the arms of Portugal. In 1518
Alverenga, another Portuguese commander, sailed to
Ceylon with a fleet of nineteen ships, and proeeeded to
erect a fort, For doing this he had the authority of his
own sovereign, and he pretended to have the permission
of the Emperor of Ceylon. The permission however was
denied; the Singalese attempted to impede the progress
of the work, and some of them were killed in the affray.
Alvarenga attacked them and compelled them to submit
to a treaty in which, among other conditions, it was stipu-
Iated that the Portuguese should be at liberty to erect a




538 CEYLON.
fort at Colombo, that the Emperor should pay to King
Emanuel an annual tribute of a certain number of precious
stones, six elephants, and 120,000 pounds of cinnamon.
The Dutch, who had sorne time before begun to visit
Ceylon, were, in 1636, formally called in to assist in de-
ciding the disputes between two rival candidates to the
throne of Kandy. From that time they began to possess


·themselves of forts in the country, cultivated the friend-
ship of the Emperor, and in 1658 succeeded in totally
driving the Portuguese out of Ceylon. In 1672 the
French, under M. de la Haye, made an attempt to esta-
blish commercial relations with the Emperor of Ceylon.
De la Haye sent ambassadors to the Emperor, who, pro-
bably with the view of having at hand a power that was a
rival to the Dutch, granted them leave to build a fort in
the Bay of 'I'rincomalee, assisted them in the work, and


'allowed sorne ofhis own subjects to form part ofthe gar-
rison. De la Haye then sailed for the Coramandel coast,
but promised speediIyto return, which however he was pre-
vented from doing as his fleet was disperscd by the Dutch,
w ho took four of his ships, and drove the rest into Surat.
'I'he Dutch admira] then sailed to the Bay of Trincomalee
and made himself master of the fort. In 1782 a British
fleet under the command of Sir Edward Hughes, and
sorne land forces under that of Sir Hector Munro, made
themselves masters of Trincomalee, They were soon
afterwards dispossessed by the French. The English
finaIJ~ took possession of the Dutch settlements in Ceylon
in the year 1796. The conquest was easiIy achieved by
a body of forces under the command of Colone! Stuart.
The conquered provinces were for a short time subjected
to the jurisdiction of the Presidency of Madras, but were
afterwards transferred to the crown of Great Britain, and
rendered wholly independent of the East India Company.
The Honourable Frederick North went out in 1798 as
the first Governor of the British possessions in the island
of Ceylon.-Philalethe's (R. Fellowes) History of Cey-
Ion, 1 to 174.


In 1815 the cruelties of the reigning sovereign had
alienated the affections of his subjects, and compelled
the chief men of the country to throw themselves on the
British authorities for protcction, In addition to his
misconduct to his own subjects, the King had barbarously
put to death ten inhabitants of the British settlements,




CEYLON. 539
who had resorted to a village within the Kandian limits
for their usual purposes of traffick, and who, without
having cornrnitted any crime 01' even having anyimputed
to chem, were seized and conveyed to prison. They were
all rnutilated in a most shocking manner. Seven died upon
the spot, and the remaining three arrived in Colombo
with their arms, noses, .and ears cut off. This act of hor-
rible cruelty was no doubt perpetrated by way of retalia-
tion for the protection afforded by the British to the
King's own subjects who had fled from his desperate and
atrocious cruelties. It left however no altemative but a
submission which the King was not likely to offer, 01' an
appeal to the sword. The first was deemed utterly hope-
Iess, and the second was resolved on. Although deprived
of the expected aid of sorne troops from India, General
Brownrigg, relying as much on the universal hatred felt
for the tyrant as on his own means of attack, advanced
with the force under his command, amounting to no more
than 3000 men, to the overthrow of the Kandian govern-
mento His anticipations of the result were not miscalcu-
lated, and without the loss of a single man he obtained
possession of the town of Kandy, and of the person and
family of the tyrant. (1)


On the Qd of March, 1815, a conference was held in
the audience-hall of the palace of Kandy, between the
Governor 011 the one part, the Adikars, Dessaves, and
other principal chiefs of the Kandian provinces on the
other part, on behalf of the people, and in presence of the
Mohottales, Coraals, Vidaans, and other subordinate
Headmen from the different provinces. and a great con-
course of inhabitants.c-Governor's Bulletin.-Narr. 66.


The convention there agreed on declared that the Raja
Sri Wikreme Raja Sinha, by the habitual violation of the
chief and most sacred duties of a sovereign, had forfeited


(1) This summary of the cause,
the manner, and tbe result of the very
short bul important war which put
tbe wbole of CeyIon into tbe posses-
sion of England, is drawn from a
pamphlet published by Egerton of
Whiteball, and entitled "A Narra-
tive of Events tbat have recently hap-
beped in Ceylon, by a gentleman re-
sident on tbe spot.' Most of the
circumstancés described in the N arra-


tive, especially that of the rnutilation
of ten Britisb subjects, are stated in
tbe Governor's proclamation and otber
oflicial documents appended to tbe
Narrativo. This pamphlet is quoted
witb respect by the autbor of the His-
tory of Ceylon, which was originally
publisbed under tbe assumed name of
Pbilalethes, but wbich in the copy
deposited 10 the British lI1useum is
attributed to 1\11'. R. Fellowes.




5100 eEYLON.


•


all c1aim to that title, and was deposed from the oflice of
king; that the dominion of the Kandian provinces was
vested in the Sovereign of the British Empire, to be exer-
cised through the Govcrnors and thcir accredited agents,
saving to the Adigars and others lawfully appointcd by
authority of the British government, the rights, privileges,
and powers of their respective offices, and to all classes of
the people the safety of their persons and property, with
their civil rights and immunities, according to the Iaws,
institutions, and customs established and in force amongst
them.


The religion of Boodho, professed by the ehiefs and in-
habitants, was declared inviolable, and its rites, ministers,
and places of worship were to be maintained and pro-
tected.


Every species of bodily torture, and all mutilation of
limb, member, 01' organ, were prohibited and abolished.


No sentence of death was to be carried into execution
except on the written warrant of the Governor, made on
a report of the agents of thc govermnent, in whose pre-
sence all criminal trials were to take place.


Dispositions were then made for the administration of
justice till His Majesty's pleasure should be known, and
in the meantime the laws of England, as to criminal mat-
ters, were dec1ared to be in force with respect to British
subjects.-Narr. Appendix. .


A rebellion occurred in 18l 6, anel a change of the con-
stitution was made in consequence.


The following regulations wcre introduced. (Those re-
lating to judicial matters have since been abolished by the
Charter of Justice.)-See the Charter, post, 544,.


The executive and judicial authority was delegated to
a board of commissioners, and occasionally to resident
agents.


The Europeans were required to pay proper marks of
respect to the native chiefs.


A tenth of the produce of rice grounds was claimed in
lieu of all former taxes, except in certain loyal districts,
where only one-fourteenth was levied.


The lands of many individuals distinguished for loyalty
during the rebellion, those belonging to temples, to pub-
lie officers of the state, and the Cháliás 01' cinnamon
peelers, were exempt from aH taxes.


The causes of minar importance were heard by the go-




CEYLO'N. 541
vernment agent 01' second commissioner alone; more im-
portant cases by the same persons, assisted by two 01'
more native chiefs; and capital cases by the Resident, 01'
second commissioner, and similar assistants,


A right of appeal from inferior to superior courts, and
ultimately to the Governor, was established.-Ency.
Metr.


PECULIAR OFFICES AMONG THE CEYLONESE.


The Singalese have certain established nationallaws 01'
old customs, according to which most things are deter-
mined, where the will of the King does not interpose to
make any alteration. The children inherit the landed
property, which does not descend exclusively to the
eldest son; but where the right of primogeniture is
allowed, the individual is obliged to support the mother
and children. N o man may marry a woman who has run
away from her husband until the husband has married
another woman, The children of a freeman by a mother
who is a slave, are born slaves, but the children of a slave
by a free woman are free. A thief who cannot make a
sevenfold restitution becomes a slave, Old peoplc who
run in debt barter their children for the amount, 01' pawn
them as a security for the payment.


In a part of Valentyn's work, entitled " Extract uyt de
Consideratien van de Heer van Rheede over Ceylon,"
dated in the year 1677, it is said that a ganima, orvillage,
is composed of several hamlets; a pattu, 01' district, of
several villages; a corIe, 01' county, of several pattus ; and
a dessaveny, 01' province, of severa] corles.-Hist. Ceylon,
323, n. '


A coraal is the overseer 01' president of a corle 01'
cotinty, who has two, three, 01' four attacoraals under him,
according to the size of the corIe and the number of
pattus into which it is divided. He has moreover from
six to eight lascaryns, pamideas, 01' messengers, subject to
his orders, The attacoraals are to see that these orders
are punctually executed.


Cariacoranno, 01' the majoraals, may be denominated
the bailiffs of a village. They vary from one 01' two to
six 01' more, according to the size, culture, and population
of the village. It is their business to attend to the pay-
ment of the annual imposts, to see that the land is sowed




542 CEYLON.
and the harvest got in at the proper time, and to render a
good aeeount to the lord 01' proprietor of the soil. When
the lord visits the village it is their duty to see that proper
apartments are prepared for him, that they are hung with
white calico, and his stool eovered with the same, They
are also to attend to the supply of his food during his
stay,


Lianno is the same as clerk 01' scribe of the village,
who keeps an aceount, which he gives to the lord, of all
the products and dues thereof.


Canganeme is an officer who musters the people of the
village and calls them together when any work is to be
done.


Mananna is a measurer of grain; when the harvest has
been got in it is his business to measure outthat grain,
which is a common stock, to the different proprietors. He
was also partieularly to measure the corn that was due as
an impost to the King.


GamllCwaja, a village lascaryn, who at the orders of the
Kadan of the village calls the people together, and goes
from house to house to announce on what day they are to
meet.


Haindes execute the work that is to be done in a vil-
lage, and work by turns for the King 01' the proprietor.


Coolies, porters of all kinds of burdens and bearers of
the palanquins. These coolies are of the east 01' race of
the vellalas, who sprang up in the time of the Portuguese.
Befare their time there were no coolies among the vellalas,
but only among the inferior casts.


COURTS.


The courts appointed by the Charter of Justiee are-
" The Supreme Court of the island of Ceylon." It is to


consist of one Chief Justice and two Puisne Judges, to be
appointed by letters-patent of the island, in pursuance of
warrants from EngIand.


The judges to hold office during pleasure.-Ss. 5, 6.
Three cireuits are to be formed, the northern, southern,


and eastern.-S. 21.
Distriet Courts, consisting of one judge and three .as-


sessors, are to be established throughout the island. The
distriet judges to hold office during pleasure.-Ss. 23, 24.


The Supreme Court to be holden at Colombo.i--S. ~8.




CEYLON.


The District Courts to have jurisdiction over aH civil
mattexs, ~i..t..Q..i..~ \,l".~ \\\\\\t'i!. \)f their respective districts, and
over all criminal matters, except where the punishment is
death, transportation, or banishment, or imprisomnent for
more than twelve calendar months, or whipping exceeding
100 lashes, or a fine exceeding cflO.-Ss. :29, SO. They
are also to have the care of persons of unsound mind, s.
31; of matters relating to wills and intestacies, s. 32; 01'
revenue, s, 33. Their decisions are to be pronounced in
open court. -8 35.


The Supremo Court is to have an appellate jurisdiction
over matters previously decided in the District Courts,
and over those matters which the District Courts cannot
inquire into.-S. 36.


Civil and criminal sessions are to be holden by sorne
one of the judges of the Supreme Court, in each of the
circuits into which the island is divided.-S. 37.


Prosecutions for criminal offences to be by a public
officer.-Ss. 46, 47.


Civil and criminal sessions shall be held at Co]ombo.-
S.52.


Questions of law may be reserved at these sessions, and
general sessions shall be held at Colombo to decide on
them.-Ss. 53, 54.


W rits of Habeas Corpus may be issued by the Supreme
Court.-S.57.


The judges of the Supreme Court to make general rules
and orders.-S. 60.


The right to present appeals is limited and regulated
by s. 61, and the right of the Crown to admit appeals not
coming within such limitations and regulations, is re-
served.-S. 62. ,


Alllaws, &c. now in force in the island, and repugnant
to the present charter, abrogated.-S. 65.


The charter to come into effect within two months after
its arrival on the island.-S. 67.




( 544 )


CEYLON CHARTER OF JUSTICE, 1833.


WILLIAM the Fourth, by the grace of God, of the United Kingdom of
Great Britain and Ireland King, Defender of the Faith, &c. to all to
whom these presents shall come, greeting:


1. Whereas his late Majesty King George the Third, by three severaI
charters and letters-patent under the great seal of the United Kingdom
of Great Britain and Ireland, bearing date respectively at Westminster
tbe 18th day of ApriI, in the year of our Lord 1801, the 6th day of
August, in the year of our Lord 1810, and tbe 30th day of October, in
the year of our Lord, 1811, did establish within his said late Majesty's
settlements of the IsIand of Ceylon and tbe territories and dependencies
thereof, a certain court called the Supreme Court of Judicature in the
IsIand of Ceylon, and a certain other court called the High Court of
AppeaI in the Island of Ceylon, and did make certaiu other provisions
for the due administration of justice in the said settlements, territories,
and depondencies : And wliereas since tbe day on which the Iast of the
said severaI charters and letters-patent bears date, a certain territory in
the interior of the said IsIand of Ceylon, called the kingdom of Kandy,
or the Kandyan provinces of the Island of Ceylon, hath become and
now is subject to his Majesty, whereby the whole IsIand of Ceylon with
its dependencies has become and now is part of his Majesty's domi-
nions: And whereas it is provided by each and every of the said seve-
ral charters and letters-patent, that nothing therein respectively con-
tained, 01' any act which should be done under the authority thereof re-
spectively, should extend or be deemed or construed to extend to pl'e-
vent his said late Majesty, his heirs and successors, from making such
further or other provision for the administration of justice throughout
the said settlements and territories in the said Island of Ceylon with tbeir
dependencies, at his and their will and pleasure, and as circumstances
might require, his late Majesty meaning and intending fully and abso-
lutely, and to all intents and purposes whatsoever, to reserve to himself
his heirs and successors, such and the same rights and powers in and
ove,' the said settlements, territories, and dependencies and evel'Y part
thereof, and especially touching the admiuistration of justice therein,
and al! other matters and things in and by the said severaI charters
and lctters-patcnt provided for, as if tbe said several charters and
letters-patent had not heen made, anything therein contained, or
any law, custom, usage, matter or thing whatsoever to the contrary in
nnywise notwithstanding : And whereas it is expedient to make more




CEYLON-CHARTER OF JU8TICE. 54<5
gpneral and more effectual provision for the administration of justice in
the said island and its dependencies: Now know ye, that we upon
full consideration of the premisas, and of our certain knowledge and
mere motion, have thought fit to revoke and annul, and do hereby re-
voke and annul each and every of the said charters and Istters-patent,
sueh revocation to take effect at and from after the time when (as here-
inafter mentioned) this our charter will come into operation in our said
island,


2. And whereas in the several districts and provinces of the said
island there now are several courts appointed to administer justice by
the exercise of original j urisdiction to the inhabitants of the said dis-
tricts and provinces, known respectively by the names and titles of the
Provincial Courts, the Courts of the Sitting Magistrates, the Court of
the Judicial Commissioner, the Court of the Judicial Agent, the Courts
of the Agents ·of Government, the Revenue Courts, and the Court of
the Sitting Magistrate of the Mahabadde: And whereas such courts
differ among themselves in respect of their constitution, of their rules of
procedure, and of the kinds and degrees of the jurisdiction which they
exercise within the limits of their respective districts 01' provinces:
Now know ye, that we upon full consideration of the prernises have
thought lit to direct, ordain, and appoint, that the said Provincial Courts,
the said Courts of the Sitting Magistrates, the said Court of the Judicial
Commissioner, the said Court of the Judicial Agent, the said Courts of the
Agents of Government, the said Revenue Courts, and the said Court ofthe
Sitting Magistrate of the Mahabadde, shall be and the same are hereby
respectively abolished, such abolition to take effect at and from after the
time when (as hereinafter mentioncd) this our charter wiU come into
operation in our said island.


3. And whereas the Governor of our said island for the time being,
and the said Court of the Judicial Commissioner have hitherto exer-
eised an appellate jurisdiction for the administration of justice in cer-
tain cases arising in the Kandyan provinces of our said islands: And
whereas certain courts ealled the Minor Courts of Appeal, and certain
courts caUed the Minor Courts of Appeal from revenue cases, have
hitherto exercised an appellate jurisdiction for the administration of
justiee in certain cases arising in the maritime provinees of the said
island: And whereas the existence of several independent appellate
judicatures in the said island tends to introduce uncertainty into the
administration of justiee there: Now know ye, that we upon ful! con-
sideration of the premises, have thought fit to direct and ordain, and do
hereby direet and ordaiu, that the said appellate jurisdictions of the
Governor of the said island, and of the said Court of the J udieial Corn-
missioner respectively, shall be and the same are hereby respeetively
abolished, and that the said Minor Courts of Appeal, and the said


N N




546 CEYI,ON-CHARTER OF JUSTICE.
Minor Courts of Appeal for revenue cases, and such their appe\late
jurisdiction, shall be and the same are hereby abolished.


4. And to provide for the administration of justice hereafter in our
said island, our will and pleasure is, and we do hereby direct, that the
entire administration of justice, civil and criminal, therein shall be
vested exclusively in the courts erected and constituted by this our
chárter, and in such other courts as may be holden within the said
island under any commission issued 01' to be issued in pursuance of the
statutes in that case made and provided for the trial of offences com-
mitted on the seas, 01' within the jurisdiction of our Lord High Admiral
01' the commissioners for executing his office, 01' under any commission
issued 01' to be issued by our Lord High Admiral 01' by the com-
missioners for executing his office for the time being. And it is our
pleasure, and we do hereby declare, that it is not and shall not be com-
petent to the Governor of o~r said island, by any law 01' ordinance to
be by him made with the advice of the Legislative Council thereóf 01'
otherwise howsoever, to constitute or establish any court for the admi·
nistration of justice in any case, civil 01' criminal, save as hereinafter is
expressly saved and provided: Provided nevertheless, and we do
hereby declare, that nothing herein contained shall extend or be con-
strued to extend to prevent any persons frorn submitting their differ-
ences to the arbitration of certain assemblies of the inhabitants of vil-
lages known in our said island by the name of Gansabes.


5. And we do hereby grant, direct, ordain, and appoint, that there
shall be within the said island of Ceylon one Supreme Court, which
shall be called "The Supreme Court of the Island of Ceylon."


6. And we do direct and appoint, that the said Supreme Court of
the island of Ceylon shall consist of and be holden by and before one
Chief J ustice and two Puisne J ustices, and that the Chief J ustice shall
be called and known by the name and style of "The Chief Justice of
the Island of Ceylon;" and that the said Chief Justice and Puisne Jus-
tices shall from time to time be nominated and appointed to such their
offices by letters-patent, to be issued under the public seal of the said
island, in pursuance of warrants to be from time to time issued by us,
our heirs and successors, under our or their sign manual, and shall
hold such their offices during the pleasure of Us, Our heirs and suecas-
sors.


7. And we do further direct and appoint, that upon the death, re-
signation, sickness, 01' incapacity of the said Chief J ustice, or any of
the said Puisne Justices, or in case of the absence of any of them from
the said island, or in case of any.such suspension from office as herein-
after mentioned, of any such Chief Justice or Puisne Justice, it shall
and may be lawful to and for the Governor of our said island for the
time being, by letters-patents to be by him for that purpose made and




CEYLo~-CHARTER OF JUSTICE. 547
issued under the public seal of the said island, to nominate and ap-
point sorne fit and proper person or persons to act as and in the place
and stead of any such Chief Justice or Puisne Justice so dying or re-
signing, or labouring under such sickness or incapacity as aforesaid,
or being so absent as aforesaid from the said colony, or being so sus-
pended until the vacancy or vacancies so created by any such death, or
resignation, or sickness, or incapacity, or absence, or suspension, shall
be supplied by a new appointment to be made in manner aforesaid, or
until the Chief Justice or Puisne Justice so becoming sick or incapable,
or being absent or suspended as aforesaid, shall resume such his office,
and enter into the discharge of the duties thereof.


8. And whereas cases may arise in which it may seem necessary to
our Governor for the time being of our said island, that a judge of the
said court should be suspended from the exercise of his functions
therein provisionally until our pleasure can be known, and it is expe-
dient that no such act of suspension should take place except upon the
most evident necessity and after the most mature deliberation; and that
in any such event the judge who may be so suspended should receive
the rnost early, complete, and authentic information of the grounds of
such proceeding against him; We do therefore declare, direct, and
appoint, that it shall and may be lawful for the Governor of our said
island for the time being, by any order or orders to be by him for that
purpose made and issued under the public seal of the said island, with
the advice and consent of the Executive Council of the said island, or
the major part of them, upon proof of the misconduct or incapacity of
any such Chief J ustice or Puisne J ustice as aforesaid, but not otherwise,
to suspend him from such his office and from the discharge of the
duties thereof; provided that in every such case the said Governor
shall immediately report for our information, through one of our prin-
cipal Secretarias of State, the grounds and causes of such suspension;
and provided also, that a full statemeat be entered on the minutes of
the said Executive Council of the grounds of such proceeding, and of
the evidence upon which the same may be founded, a full copy of
which minutes and evidence shall by such Governor be transmitted
to such judge, together with the order suspending him from such his
office.


9. And we do hereby reserve to Us, Our heirs and successors, with
the advice of Our or their Privy Council, full power and authority to
confirm or to disallow any such suspension from officeas aforesaid of
any such Chief Justice or Puisne Justice.


lO. And We do hereby give and grant to Our said Chief Justice for
the time being rank and precedence aboye and befare all our subjects
whomsoever within the said island and its dependencies, excepting the
Governor or Lieutenant-Governor for the time being thereof, and ex-


NN2




548 CEYLON-CIIARTER OF JUSTICE.
cepting such persons as by Iaw or usage in England take place before
our Chief Justice of our Court of King's Bench. .


11. And we do hereby give and grant to the said Puisne Justices for
the time being rank and precedence aboye and before all our subjects
whomsoever within the said island and its dependencies, excepling the
Governor 01' Lieutenant-Governor for the time being thereof, the said
Chief Justice, and tbe oflicer for the time being eomrnanding our forces
in tbe said island and its dependencies, and excepting sucb persons as
by law 01' usage in England take place before our Puisne Justices of our
Court of King's Bencb.


12. And we do hereby declare, that the said Puisne Justices shall
take rank and precedence between themselves according to the.priority
of their appointments respectively,


13. And we do furtber grant, direet, ordain, and appoint, tbat the
said Supreme Court of tbe island of Ceylon shall have and use, as occa-
sion may require, a seul bearing a device and impression of our royal
arms, with an exergue 01' label surrounding the same, with this inscrip-
tion, "The Seal of the Supreme Court of the Island of Ceylon ;" and
that the said scal shaIl be delivercd to and shaIl be kept in the custody
of the said Chief Justicc, with full liberty to deliver the same to any
Puisne Justice of the said court for any temporary purpose; and in case
of the vacancy of 01' suspensión from tbe oflice of Cbief Justice, the
same shall be delivered over to and kept in the custody of such person
as shall be appointed by the said Governor of the said island to act as
and in the place and stead of the said Chief J ustice.


14. And we do further direet and appoint, that no such Chief Justiee
or Puisne Justiee as aforesaid sha11 be capable of accepting, taking, 01'
performing any other oflice, place of profit 01' emolument within the
said island, on pain thatthe acceptance of such other office as aforesaid
sball be ipso Jacto an avoidance of such his oflice of Chief Justice 01'
Puisne J ustice, as the case may be, and tbe salary thereof shaJI cease
accordingly from the time of such acceptance of any otber office 01'
place: Provided nevertheless, that no such Chief J ustice 01' Puisne J IIS-
tice shall be rendered incapable of holding his oflice, 01' shall forfeit his
salary by accepting the oflice of Judge of the Court of Vice-Admiralty
in the said island, 01' of commissioner for the trial and adjudication of
prize causes and other maritime questions arising in India.


15. And we do hereby constitute and appoint our trust y and well-
beloved Sir Charles MarshaIl, Knigbt, to be the first Chief Justice of the
said Supreme Court, and our trusty and well-beloved William Rough,
Esquire, Serjeant-at-law, to be the senior Puisne Justice of tbe said
Snpreme Court, and our trusty and well-beloved William Norris,
Esquire, to be the second Puisne Justice of the said Supreme Court.
. 16. And we do herehy direct, ordain, appoint and declare, that there




CEYLON-CHArtTER OF JUSnCE. 549
shall be attached and belong to the said court an officer to be styled
the Registrar and Keeper of Records of the said court, and such and so
many other officers as to our Chief J ustice of the said court for the
time being shall from time to time appear to be necessary for the admi-
nistration of justiee, and the due exeeution of the ¡1Owers and autho-
rities whieh are granted and eommitted to the said court by these our
letters-patent: Provided nevertheless, that no offiee shall be ereated in
the said court, unless the Governor of the said island for the time being
shall first signify his approbation thereof to the said Chief J ustice for the
time being in writing under the hand of sueh Governor.


17. And we do further direct and declare our will to be, that all the
subordinate offieers of the said eourt shall be appointed to sueh their
offiees by us, or by the Governor of the said island on our behalf, hy
eommissions to be for that purpose issued under the publie seal of the
said island: Provided nevertheless, that all persons who shall be at-
taehed to or hold any offiee in the said court, as clerk or prívate secre-
tary to any of the judges thereof, shall be appointed to such offiee by
the judge for the time being whom such person may so serve in any
such cnpacíty.


18. And we do further direct and appoint, that the several officers of
the said Supremo Court shall hold their respective offices during the
pleasure of us, our heirs and successors, and shall be subject to be sus-
pended from their offices therein by the said court for rnisconduct or
other sufficient cause,


19. And we do hereby authorize and empower the said Supreme Court
to admit and enrol as advocates or proctors in the said Supreme Court
al! sueh persons, being of good repute, as shall upon examination by one
or more of the said Justices of the said Supreme Court appear to be of
competent knowledge and ability : Provided always, that whenever the
said Supreme Court sball refuse to admit and enrol any person apply-
ing to be admitted and enrolled as an advocate or proctor in the said
Supreme Court, the judges of the said court shall in open court assign
and declare the reasons of refusal.


20. And we do direct and declare, that no person whatsoever not so
admitted and .enrolled as aforesaid, shall be allowed to appear, plead,
or act in the said Supreme Court, for or on behalf of any other person
being a suitor in the said court.


21. And we do further declare our pleasure to be, and do hereby
ordain and appoint, that for the purpose of the administration of justice
under this our charter, the said island of Ceylon shall be divided into
the district of Colombo, and three eireuits to be called respeetively the
Northern Circuit, the Southern Cireuit, and the Eastern Circuit, and
that the said Northern Cireuit shall eomprise the distriet of Jnffua, toge-
ther with the several districts which are pareel of the maritime provinces
of thc said island, and which lie to the westward of the Kandyan pro-




550 CF.YLON-CHARTER OF JUSTICE.
vinees of the said island, between the said district of Jaffna and the
distriet of Colombo; and that the said Southern Circuir shall eomprise
the distriet of the Mahagampattoo, and all the distriets pareel of the
maritime provinees of the said island Iying to the westward and south-
ward of the Kandjan provinees of the said island, between the distriet
of the Mahagampattoo and the distriet of Colombo; and that the said
Eastern Circuit shall eomprise all the Kandyan provinees of the said
island, and all the distriets pareel of the maritime provinees of the said
island Iying to the eastward of the Kandyan provinees of the said
island, between the distriet of Jaffna and the distriet of the Mahagam-
pattoo: Provided nevertheless, that it shall be lawful for the Governor
for the time being of our said island, on any applieation to him for
that purpose made in wriling, under the hands of the judges for the
time being of the said Supreme Court or the major part of them, but
not otherwise, by any proclamation or proclamations to be from time
to time for that purpose issued, to alter as oeeasion may require the
before mentioned division of the said island as aforesaid, and to esta-
blish any other division or divisions thereof for that purrose which may
appear lo the said Governor and the whole or the major part of such
judges, more eonducive to the public eonvenienee and the effeelive
administration of justiee in the said island.


22. And we do hereby authorize and require the Governor for the
time being of our said island, with the csncurrence of the judges of the
said Supreme Court, or the major part of them, but not otherwise, by
any proelamation or proelamations to be by him for that purpose from
time to time issued, to subdivide into distriets eaeh of the cireuits into
which the said island, exclusive of the distriet of Comlombo, is or shall
be in any manner aforesaid divided; and from time to time with the
like concurrence, but not otherwise, to revoke, alter, and amend any
sueh proelamation or proclamations, as oeeasion muy require, and
whieh appointment of the said circuits and dislriets sha11 be made in
sueh a manner as may best eonsist with and promote the prompt and
effeetual administration of justice therein as hereinafter mentioned:
Provided always, that until the said circuits shaU in manner aforesaid
be divided into distriets in pursuanee of this our charter, the existing
divisions of our said island eomprised within the respective limits of
the said cireuits respectively, shall for the purposes hereof be deemed
and taken to be sueh distriets as aforesaid.


23. And we do further grant, direet, and appoint, that within each
and every distriet of the said island there shall be one eourt, to be
ealled the District Court of sueh distriet; and that every sueh District
Court shall he holden by and before one judge, to be ea11ed the Dis-
trict J udge, and three assessors, and that every sueh Distriet J udge
s11a11 be appointed to sueh his offiee by letters-patent, lo be for that
purpose issucd under the publie seal of the said island, by the Gover-




CEYLON-CHARTER OF JUSTICE. 551
nor thereof for the time being, in pursuanee of warrants lo be for that
purpose addressed to him by us, our heirs and sueeessors; provided
that such Governor may and he is hereby authorized and required to
issue sueh letters-patent as aforesaid provisionally and subject to the
future signifieation of the pleasure of us, our heirs and sueeessors, and
without any sueh warrant or warrants as aforesaid, on any oeeasion or
oeeasions on whieh it may be necessary to make any sueh appointment
or appointments, before the pleasure of us, our heirs and sueeessors can
be known,


24. And we do hereby declare, that the said distriet judges respec-
tively shall hold sueh their offiees during the pleasure of us, our heirs
and suecessors.


25. And we do further direet and appoint, that the before mentioned
assessors shall be seleeted from amongst our subjeets inhabiting the said
island, whether natives thereof or otherwise, and being respeetable roen
of the full age of twenty-one years and upwards, and possessing sueh
qualifieations as shall from time to time be determined by any rules or
orders of eourt to be made in the manner hereafter mentioned, and not
having been eonvieted of any infamous erime, nor labouring under any
sueh bodily or mental ineapacity as wouId render them unfit for the
diseharge of that offiee.


26. And we do hereby reserve to ourselves, our heirs and sueeessors,
the right of appointing in eaeh of the said Distriet Courts one person
to aet as a permanent assessor, but in respect of all assessors until any
sueh appointment shall be made, and after any sueh appointment shall
be made in respeet of all assessors not so appointed, it is our pleasure,
and we do hereby direet and declare, that they shall be seleeted, sum-
moned, and required to serve in the said office, in sueh manner as
shall be provided by sueh rules and orders of court as are hereinbefore
partieularly mentioned.


27. And we do hereby further direet, that the ministerial and other
subordinate officers of the said Distriet Courts respeetively shall re-
speetively be appointed to and shall hold such their offiees therein in
sueh and the like manner in every respect as is hereinbefore provided
with regard to the ministerial and other officers of the said Supreme
Court; and that the admission and enrolment of persons to appear to
plead or act in any of tbe said Distriet Courts as advoeates or proctors,
sball be regulated and provided for by sueh general rules and orders of
court as are hereinafter mentíoned,


28. And we do further direet and appoint, that the said Supreme
Court shall be holden at Colombo in the said island, excepting for the
purpose of such circuits as are hereinafter mentioned, and that every
sueh District Court as aforesaid shall be holden at such eonvenient
place within every such distriet as the Governor for the time of our
said island shall from time lo time for that purpose appoint by any




552 CEYLON-ClIARTER OF JU8TICE.
proclamation or proclamatious to be by him in manner aforesaid issued
for suéh division as aforesaid of the said island into districts,


29. And we do further grant, direct, and appoint, that each of the
said District Courts shall be a Court of Ci vil Jurisdiction, and shall
have cognizance of and fu11 power to hear and determine a11 pleas,
suits, and actions in which the party or parties defendant shall be resi-
dent within the distriet in which any such suit or action shall be
brought,or in which the act, matter, or thing in respect ofwhich any
suit or action shall be brought, sha11 have been done or performed
within such district: Provided nevertheless, that no such District Court
as aforesaid sha11 be competent to hold jurisdiction or, or to hear, or
to determine any cause, suit, or action, wherein the judge of sueh
court shall himself be a party, plaintiff, or defendant; but that every
cause, suit, or action, which according to the provisions aforesaid
would have been cognizable in any District Court, if the judge of such
court had not been a party thereto, shall in that case be cognizable in
the court of any district immediately adjoining.


30. And we do further grant, direct, and appoint, that each of the
said District Courts shall be a Court of Criminal Jurisdiction, and
shall have full powcr and authority to inquire of a1l crimes and of-
fences committed wholly or in part within the district to which such
court may belong, and to hear, try, and determine a11 prosecutions
which shall be commenced against any person or persons for or in re-
spect of any such crimes or offences, or alleged crimes or offences:
Provided always, that such criminal jurisdiction as aforesaid sha1l not
extend to any case in which the person or persons accused shall be
charged with any crime, which, according to any law now or hereafter
to be in force within the said island, shall be punishable with death, or
transportation, or banishment, or imprisonment for more than twelve
calendar months, or by whipping exceeding 100 lashes, or by fine ex-
ceeding .ftO.


31. And we do further grant, direct, and appoint, that each of the
said District Courts shall have the care and custody of the persons and
estates of a11 idiots, lunarios, and others of insana or nonsane mind
resident within such districts respectively, with full power to appoint
guardians and curators of a11 such persons and their estates, and to
take order for the maintenance of such persons, and the proper manage-
ment of their estates, and to take proper securities for such management
from such guardians and curators, and to call them to aecount, and to
charge them with any balance which may be due to any such persons
aforesaid, or to their estates, and to enforce the payment thereof, and
to take order for the secure investment of any such balances, and such
guardians and curators from time to time to remove and replace as occa-
sion may require,




Cl>YLoK-CHARTSR OF JUSTICE. 553
32. And we do further give and grant to the said District Courts re-


spectively, in their said respective districts, full power and authority to
appoint administrators of the estates and effects of any persons dying
within such respective districts intestate, or who may not have byany
last will and testament appointed any executor or trustee for the admi-
nistration or execution thereof, and like power and anthority to inquire
into and determine upon the validity of any document or documents
adduced before them as and for the last wil! and testament of any
person who may have died within such districts respectively, and to record
the same, and to grant probate thereof, with like power and authority
to appoint administrators for the administration or execution of the
trusts of any such last wil! and testament as aforesaid, in cases where
the executors or trustees thereby appointed shall not appear and take
out probate thereof, or having appeared and taken out such proba te,
shall by death or otherwise become incapable to carry any sueh trusts
fully into execution, And we do further authorize and empower the
said District Courts in their said respective districts to take proper secu-
rities frorn al! executors and administrators of the last wills and testa-
ments of any deceased persons, or of the estates and effects of any
perFons who may have died intestate, for the faithful performance of
such trusts, and for the proper accounting to such courts respectively
for what may come to their hands, or be by thern expended in the
execution thereof, with like power and authority to call al! such execu-
tors and administrators to account, and to charge them with any ba-
lances which may be due to the estates of any such deceased persons,
and to enforce the payment thereof, and to take order for the secure
investment of any such balances, and such executors and administrators
from time to time to remove and replace as occasion may require,


33. And whereas doubts might arise whether by virtue of the provi-
sions aforesaid, and without an express authority in that behalf, the
said District Courts would be competent to entertain suits therein
brought for the protection of our revenue, and for the punishment of
offences committed against the revenue laws of our said island: Now,
therefore, for the removal of such doubts, we do hereby expressly de-
clare, that all causes affecting our revenue arising within our said
island, and all prosecutions for the punishment oC offences therein com-
mitted against the revenue laws thereof, shall be cognizable within the
said District Courts respectively in such and the same manner as any
other suits and prosecutions; saving nevertheless and reserving to all
Courts of Vice-Adroiralty established or to be established within our
said island, all such rights, powers, jurisdictions, and authority as are
by law vested in thero, as fullyas if this our charter had not been made :
Provided nevertheless, that no such prosecution for any offence com-
mitted against the revenue laws shall be cognizable within any such




554 CEYLON-CHARTER OF JUSTICE.
District Court, in cases where the punishment may be of greater degree
or amouut than such District Court can, under the provisions aforesaid,
award upon prosecutions for any other offence,


34. And we do further grant and declare, that the several jurisdic-
tions so vested as aforesaid in the said District Courts, is and shall be
an exclusive jurisdiction, and shall not on any plea or pretext whatso-
ever be assumed or exercised by any other court, tribunal, or judge
within our said island, save and except in so far as cognizance of the
same suits, causes, actions, prosecutions, matters and things, is hereín-
after expressly given by way of appeal to the Supreme Court aforesaid,
or to the respective judges thereof, and also save and except in so far
as an original jurisdiction in certain suits, causes, actions, prosecutions,
matters and things, is hereinafter vested in the said Supreme Court, or
in the respective judges thereof, and also save and except in as far as
respects the jurisdiction of the Court of Vice-Admiralty in the said
island. .


35. And we do further direct and appoint, that every final sentence
or judgment of the said District Courts respectively, and that every
interloeutory order of the said courts having the effect of a final sen-
tenee or judgment, and that every order of any sueh court having the
effect of postponing the final decision of any cause or prosecution there
pending, and any other order which to the judge of any such court
may appear of adequate importan ce, shaU by such judge be pronounced
in open court, and that such judge shall in aU such cases state, in the
presence and hearing of the assessors before mentioned, what are the
questions of law and of fact whieh have arisen for adjudication, and
which are to be decided upon any such occasion, together with his opi-
nion upon every sueh question, with the grounds and reasons of every
such opinion, and that every assessor shall also in open court, and in
the presenee and hearing of the judge and the other assessors, declare
his opinion and deliver his vote upon eaeh and every question whieh
the judge shall have prevíously declared to have arisen for adjudication,
whether such questions shall relate to any matter of law or to any
matter of faet: Provided nevertheless, that in case of any differenee of
opinion between any such judge and the majority or the whole of such
assessors upon any question of law or of faet depending before any
such Distriet Court, the opinion of such judge shaU prevail, and shall
be taken as the sentenee, judgment or order of the whole court; but in
every such case a record shall be made and preserved among the re-
eords of the said court of the questions declared by the judge to have
arisen for adjudication, and of the vote of such judge and of every
sueh assessor upon each such question.


36. And we do hereby grant, declare, direct, and appoint, that the Su-
preme Court of the island of Ceylon shall be a Court of Appellate juris-




CEYLON-CHARTER OF JUSTICE. 555
diction for the correction of all errors in fact or in law which shall be com-
mitted by the said respective District Courts, and shall have sole and
exclusive cognizance by way of appeal of all causes, suits, actions, pro-
secutions, matters and things, of which such District Courts may, in
pursuance of the provisions of this our charter, or any of them, take
cognizance by way of original jurisdiction. And we do further grant
to the said Supreme Court power, jurisdiction and authority to hold an
original jurisdiction for inquiring of all crimes and offences committed
throughout the said island, and for the hearing, trying and determining
all prosecutions which shall be commenced against any person or per-
sons for or in respect of any such crimes or offences, or alleged crimes
or offences.


37. And to provide for the due execution of the powers and autho-
rities and jurisdictions so vested as aforesaid in the said Supreme
Court, it is our further pleasure, and we do direct, ordain and appoint,
that civil and criminal sessions of the said Supreme Court shall be
holden by sorne one of the judges thereof in each of the circuits into
which our said island is or shall be so divided as aforesaid.


38. And we do further direct and appoint, that such sessions as
aforesaid of the said Supreme Court shall be holden twice in each year
within the northern, southern and eastern circuits of the said island re-
spectively hereinbefore described or referred to, at such places within
such respective circuits, and at such particular times in each year as the
Governor for the time being of our said island shall, after previous con-
sultation with the judges of the said Supreme Court, by proclamations
to be by him from time to time for that purpose issued, direct and ap-
point: Provided always, that the times and places for holding such
civil and criminal sessíons of the said Supreme Court on such circuits
shall be so arranged as that all the judges of the said Suprema Court
shall never at the same time be absent from Colombo, and that all such
judges shall be resident at the same time at Colombo not less than
one month twice in each year. And we do direct and appoint, that
the Chief J ustice of the said court shall first choose the circuit on
which he will proceed for the purposes aforesaid, and that the second
choice shall be made by the senior Puisne Judge for the time being.


39. And we do further direet, ordain and appoint, that at every civil
sessions of the Supreme Court to be holden on any such circuit as
aforesaid, three assessors shall be associated with the judge, and that
every criminal sassions of the Supreme Court to be holden on any such
circuit, shall be holden before sueh judge and a jury of thirteen men,
which assessors and jurors shall be selected, summoned and required to
appear and serve in such manner and form as shall be provided by
such general rules and orders of court as hereinafter mentioned.


40. And we do will, ordain and appoint, that within each and every




556 CEYLON-CHARTER OF JUSTICE.
of the said circuits respectively all and every the appeHate powers,
jurisdictions and authorities hereby vested in the said Supreme Court
shall be exercised hy the judge for the time being of such circuit, and
the assessors so to be associated with him as aforesaid; and that within
each and every of the said circuits respectively, al! and every the ori-
ginal powers,jurisdictions and authorities hereby vested in the said Su-
preme Court shall be exercised by the judge for the time being of such
circuit, who, upon the trial of any crimes made cognizable by the said
Supreme Court by way of such original jurisdiction as aforesaid, shall
be associated with such jurors as aforesaid,


41. And we do further direct and appoint, that at every civil sessions
of the said Supreme Court so to be holden as aforesaid on every sueh
circuít, the said court shull proceed to hear and determine all appeals
which may be then pending from any sentence, judgment, decree or
order of any District Court within the limits of such circuit, and to
affirm, reverse, correct, alter and vary every such sentence, judgment,
decree or order, according to law, and, if necessary, to remand to the
District Court for a further hearing, or for the admission of any further
evidence, any cause, suit or action in which any such appeal as afore-
said shall have been brought; aud upon hearing every such appeal it
shall also be competent to the said Supreme Court to receive and
admit, or to exclude and reject, new evidence touching the matters at
issue in any such original cause, suit, or action, as justice may require.


42. And we do further direct and appoint, that the Supreme Court
aforesaid at every civil sessions to be holden on any such circuit as
aforesaid, shall have ful! power and authority to grant and issue man-
dates, in the nature of writs of mandamus, procedendo, and prohibition,
against any District Court within the limita of such circuit, and to make
order for the transfer of any cause, suit or actíon depending in any one
District Court in any such circuit to any other District Court within the
same circuit, if it shall be made to appear to the satisfaction of the
said Supreme Court at any such civil sessions as aforesaid, that there is
any sufficient cause or reason to conclude that in such particular cause,
suit or action, justice would not probably be done in the District Court
in which the same had so been commenced; and in every such case the
District Court to which any such cause, suit or action shall be so trans-
ferred, shall take cognizance thereof, and have power and jurisdiction
for the hearing, trial and decision of the same, as fully and effectually
to all intents and purposes as the District Court in which the sarne was
originally brought could or might have hado


48. And we do further direct, declare and appoint, that the judge of
the Supreme Court holding; any such civil sessions thereof as aforesaid
on any such circuit, shall in open court state and declare, in the pre-
sence and hearing of the assessors before mentioned, what are the




CEYLON-CHARTER OF JUSTICE. 557
questions of law and of fact arising for adjudication upon every appeal
brought before the said Supreme Court at such sessions, and which are
then to be decided, and shall then pronounce his opinion upon every
such question, with the grounds and reasons of every such opinion;
and that every such assessor shall thereupon also in open court, and in
the presence and hearing of such judge and the other assessors, declare
his opinion and deliver his vote upon each and every question which
the judge shall have previously declared to have arisen for adjudication,
whether such question shallrelate to any matter of law 01' to anymatter
of fact ; and in case of any differcnce of opinion between any such
judge and the majority 01' the whole of such assessors, upon any ques-
tion of law 01' of fact depending upon such appeal, the opinion of such
judge shall prevail, and shall be taken as the sentence, judgment 01'
order of the whole court ; but in every such case a record shall be made
and preserved among the records of the said Supreme Court of the
questions declared by the judge to have arisen for adjudication, and of
the vote of such judge and of every such assessor upon every such ques-
tion.


44. And we do further direct, ordain and appoint, that at every
criminal scssions of the said Supreme Court to be holden on any such
circuit as aforesaid, such court shall proceed to hear and determine all
appeals which may be then depending from any sentence 01' judgment
pronounced by any District Court within the limits of any such circuit
in any criminal prosecution, and to affirm, reverse, correct, alter and
vary every such sentence and judgment according to law: and upon
hearing every such appeal it shall also be competent to the said Su-
preme Court to receive and admit, 01' to exc1ude and reject, new evi-
dence touching the matters at issue in any such original prosecution as
justice may require; and it shall also be lawful for the said Supreme
Court at any such criminal sessions as aforesaid, to make order for the
transfer of any prosecution depending in.any one DistrictCourt in such
circuit to any other District Court witbin thé same circuit, if it shall be
made to appear to the satisfaction of the said Supreme Court at any
such criminal sessions as aforesaid, that there is any sufficient cause 01'
reason to conclude that in such particular prosecution justice would
not probably be done in the District Court in which the same had been
so commenced; and in every such case the District Court to which any
such prosecution shall be so transferred shall take cognizance thereof,
and shall have power and jurisdiction for the hearing, trial and decision
of the same, as fully and effectuaHy to all intents and purposes as the
District Court in which the same was originally brought could 01' might
have hado


45. And we do further declare and ordain, that notwithslanding the
right of appeal hereby given from the judgments and sentences of the




,


558 CEYLON-CHARTER OF JUSTICE.
said District Courts u pon such criminal prosecutions as aforesaid, no
such appeal shall have the effect of staying the execution of any sen-
ten ce or judgment pronounced by any such District Court upon any
prosecution, unless the judge of such District Court shall in the exercise
of his discretion see fit to make order for the stay of any such execution
pending such appeal.


46. And we do further direct, ordain and appoint, that at every cri-
minal sessions of the said Supreme Court so to be holden as aforesaid
on every such circuit, the said Supreme Court shall inquire of all crimes
and offences committed within the limits of any such circuit, for the
trial of which such original jurisdiction as aforesaid is by this our ehar-
ter vested in the said Supreme Court, and which the King's Advocate 01'
Deputy King's Advocate shall elect to prosecute before such Supreme
Court, and shall hear, try and determine all prosecutions which shall be
commenced by the said King's Advocate 01' Deputy King's Advocate
against any person 01' persona for or in respect of any such crimes 01'
offences, 01' alleged crimes 01' offences.


47. And we do further direct and ordain, that all crimes and offences
cognizable before any of the courts constituted by these presents, 01' de-
riving authority from the same, shall be prosecuted i and that all fines,
penalties and forfeitures recoverable therein to our use, shall be sued for
and recovered in the narne of our Advocate Fiscal of our said island,
and by him 01' by sorne Deputy Advocate Fiscal,(l) by an inforroation
to be exhibited without the previous finding of any inquest by any
granel jury 01' otherwise: Provided nevertheless, ihat it shall be compe-
tent to the said Supreme Court, by such rules and 'orders of court as
after mentioned, to make any other and more convenient provision for
the prosecuting before the said District Courts breaches of the peace,
petty assaults and other minor offences of the like nature.


48. And we do further direct and ordain, that all questions of fact
upon which issue shall be joined at any such criminal sessions as afore-
said of the said Supreme Court, on any such circuit as aforesaid, shall
be decided by such jury of thirteen men as aforesaid, and that the ver-
dict of such jury shall be pronounced in open court by the mouth of
the foreman; and that if such jury shall not agree upon their verdict,
then the verdict of the major part of such jury shall be received and
taken as the verdict of the jury collectively.


(1) Though the terms "Advocate
Fiscal" and "Deputy Advocate Fis-
cal" are used here, Lord Goderich in
his Despatch, dated 23d Match, 1833,
accompanying the chárter, and ad-
dressed to Sir R. J. Wilmot Horton,
the Governor, declares the objections


that exist to these titles, and ob-
serves, that "the titles of those offi-
cers are altered by the charter" to
the King's Advocate and Deputy
King's Advocate. The use of the
former tilles in this place seemsthere-
fore to be an accidental error.




CEYLON-CHARTER OF JUSTICE. 559
49. And we do further direct and ordain, that all questions of law


which shall arise for adjudication at any such criminal sessions as
aforesaid of the said Supreme Court in any such circuit as aforesaid,
shall be decided by the judge presiding at such sessions, who shall pro-
nounee his judgment thereupon in open eourt, and assign the grounds
and reasons of sueh judgment; saving nevertheless to every such judge
the right of reserving sueh questions for the decision ofthe judges of the
said Supreme Court eollectively at their general sessions, in manner
hereinafter mentioned.


50. And we do further appoint, declare and direct, that in everycase
where any person shall be adjudged to die by any sentence of the
Supreme Court of our said island at any such criminal sessions as afore-
said, the exeeution of such sentenee shall be respited until the case of
sueh person shall have been reported by the Chief Judge 01' Puisne
J ustiee who shall have presided at sueh trial to the Governor of the said
island for the time being, which report shall be made as soon after the
passing of sueh sentence as eonveniently may be.


51. And we do further appoint, declare, and direet, that the judge
on any sueh circuit as aforesaid, holding the said criminal sessions of
the said Supreme Court, shall and may issue his mandate under his
hand, and direeted to all and every the fiseals or other keepers of
prisons within the limits of his circuit, to eertify to the said judge the
several persons then in their 01' any of their eustody, eommitted for and
eharged with any crimes 01' offenees whatsoever; and the said fiseals or
other keepers of prisons shall and are hereby required to make, eertify,
and transmit due returns to sueh mandate, by specifying in a calendar
01' list, to be annexed to sueh mandate respeetively, the time and times
when all and every of the said persons so in their custody was or were
eommitted, and by whose authority particularly, and on what eharge or
charges, crime 01' crimes respectively, in writing; and to the said list or
calendar shall also be annexed sueh information or informations, upon
oath, as may have been taken against them or any of them, and be then
remaining in the hands of the said fiseals or keepers of prisons, or true
copies thereof attested by the said fiscals or keepers of prisons re-
speetively; and if need be, aeeording to the tenor and exigence of sueh
mandate, sueh fiscal or keepers of prisons shall bring the said persons
so in their eustody, or any of them, before the said judge, wheresoever
the said judge shall then be holding the criminal sessions of the said
Supreme Court, together with sueh witness or witnesses whose name or
names shall appear to be written or indorsed on the respective commit-
ments, by virtue of which sueh prisoners or prisoner were 01' was de-
livered into their eustody respeetively, in order that sueh prisoners or
prisoner may be dealt with aceording to law: Provided always, that
wherever any party or parties shall, after the making out of any such


,




560 CEYLoN-CIIARTER OF JU5TICE.
calendar or list, and while such judge shall be holding tbe criminal ses-
sions of the said Supreme Court in the town or place wherein such
calender or list was delivered, beapprehended or committed on any
criminal charge, it shall and may be lawful for the officer of such Su-
preme Court to ínsert the name or names of such person or persons in
such calendar or listo


52. And we do further direet, declare, and appoint, that any judge
of the Supreme Court remaining at Colombo, shall within the limits of
the district of Colombo exercise the same jurisdíction, and hold such
and the same civil and criminal sessions, as the said judges of the Su-
preme Court are by these presents directed, appointed, and ordained to
exercise and to hold on their respective circuits within the limits of their
respective circuits.


53. And we do further ordain and appoint, that whenever any ques-
tion of law, pleading, evidence., or practice, shall arise for adjudication
at any civil or criminal sessions of the said Supreme Court, at any such
circuit as aforesaid, or within the said district of Colombo, which sball
appear to the judge presiding at such sessions to be a question of doubt
and difficulty, it shall be lawful for such judge to reserve such question
of law, pleadíng, evidence, or practica, for the decision of the judges of
the said Suprema Court collectively, and to report any question so re-
served to the said judges at sorne general sessions of the said Supreme
Court to be held for that purpose as hereinafter mentioned.


54. And we do further direet and appoint, that the judges of the said
Supreme Court shall from time to time, as occasionmay require, col-
lectively hold a general sessions at Colombo to hear and inquire of any
question oflaw, pleading, evidence, or practica so reserved as aforesaid,
and to decide the same according to law.


55. And we further authorize and require the respective judges of tbe
said Supreme Court on such circuits as aforesaid, and at the sessions so
to be holden for the district of Colombo, to inspect and examine the
record s of the different District Courts; and if it shall appear that con-
tradictory or inconsistent decisions have been given by different District
Courts, 01' by the same District Court upon different occasions, upon
any matters of law, evidence, pleading, or praetice, then and in every
such case the said judges of the Supreme Court shall report to the


I judges of the Supreme Court at Colombo, at such general sessions as
aforesaid, any such contradictions or inconsistencies; and the said
judges of the Supreme Court sha1l, after due consideration of the mat-
ters so brought before them, prepare the draft of such a declaratory law
upon any matter of law or evidence in respect of which such contra-
dictory or inconsistent decisions shall have been given, as the occasion
shall appear to them to require, and shall transmit such draft under the
seal of the said court to the Covernor for the time bein of our said




CEYLON-CHARTER OF JUSTICE. MI
island, who shall thereupon Iay the draft of such dec1aratory law before
the Legislative Couneil of the said island for their consideration,


56. And we further direct and ordain, that the said Judges of the
Supreme Court shall, in pursu:mee of the powers hereinafter vested in
them, after due consideration of any reports so to be made as aforesaid
by any sueh Judge, of any sueh contradiction 01' inconsistency as afore-
said, in any matter of pleading 01' practiee, make 01' establish sueh
general rules and orders of court for the removal of any doubts respect-
ing any such matters, as the oceasion shall appear to them to require.


57. And we do further ordain aad appoint, that the said Supreme
Court, 01' any Judge thereof, at any sessions so to be holden as aforesaid
on any such eircuit as aforesaid, 01' in the district of Colombo, 01' at any
general sessions of the J udges of the said Court eolleetively, shaU be and
are hereby authorized to grant and issue mandates in the nature of writs
of habeas corpus,.and to grant 01' refuse such mandates, to bring up the
body of any person who shall be imprisoned within any part of the
said island 01' its dependencies, and to diseharge 01' rernand any
person so brought up, 01' otherwise deal with such person aecording
to law,


58. And we do further direct and appoint, that the said Supreme
Court, 01' any judge thereof, at any sessions so to be holden on any such
circuit as aforesaid, 01' in the district of Colombo, 01' at any general
sessions of the said court collectively, shal1 be and they and he are and is
hereby authorized to grant and issue injunctions to prevent any irre-
mediable mischief which might ensue before the party making applica-
tion for such injunction could prevent the same, by bringing an action
in any District Court: Provided always, that it shaIl not be lawful for
the said Supreme Court, nor for any Judge thereof, in any case to grant
any injunction to prevent any person from suing 01' prosecuting a suit
in any District Court, 01' to prevent any party to any suit in any Dis-
trict Court from appealing 01' prosecuting an appeal to any Court of
Appeal,or to prevent any party to any suit in' any Court of Original
J urisdiction, 01' in any Court of Appeal, from insisting upon any ground
of action, defence, 01' appeal,


59. And whereas it may be expedient that the Judges of the said
Supreme Court at Colombo, previously to the commencement of auy
such circuits as aforesaid, should be enabled to inspect and examine
the records of the said District Courts in cases upon which appeals may
have been ente red ; and it may also be convenient that, with the consent
of the litigant parties, the hearing of such appeals should take place
before the judges of the said court collectively at their general sessions
at Colombo, and not at such circuits as. aforesaid ; and it mayalso be
couvenient, that in certain cases the Judges of the saíd Supreme Court


00




I


562 CEYLON-CHARTER OF JUSTICE.
collectively, at such general sessions, should be authorized to decide in
a summary way, and without further argument, questions arising upon
any such appeals; we do therefore further will, direct, ordain, and ap-
point, that it shall be lawful for tbe Judges of the said Supreme Court,
by such general rules and orders as hereinafter mentioned, to require
the said District Courts to transmit to them at Colombo the records of
such District Courts in any cases upon which appeals may have been
entered, and we do authorize and empower the Judges of the said Su-
preme Court collectively, at any such general sessions as aforesaid, with
the consent of all the litigant parties, but not otherwise, (save as herein-
after provided in cases appealed to us in our Privy Council,) to hear
any such appeals, or to decide the same, or any particular question or
questions arising thereupon, in a summary way and without further
argument, and to remit any such records, with such their final decision
thereupon, to such District Courts, to be by them carried into execu-
tioo. •


60. And whereas, for carrying into effect the various provisions of
this present chárter, and for the more prompt and effectual administra-
tion of justice in our said island, it is necessary that regulations should
be made respecting the course and manner of proceeding to be observed
and followed in all suits, actions, and criminal prosecutions, and other
proceedings whatsoever, to be brought, commenced, had, or taken
witbin the saíd District Courts and the said Supreme Courts respee-
tively, which regulations cannot be properly made except by the J udges
of the said Supreme Court; we do therefore hereby further declare our
pleasure to be, and do will, ordain, direct, and appoint, that it shall be
lawful for tbe Judges of the said Supreme Court eollectively, at any
general sessions to be by them holden at Colombo as aforesaid, from
time to time to frame, constítute, and establish such general rules and
orders of court as to them shall seem meet, touching and concerning the
timeand place of holding any general sessions of the Judges of the said
Supreme Court collectively, and any civil or criminal sessions of the
said Supreme Court on sny such circuits as aforesaid, or in the distriet
of Colombo and the said several District Courts, as sball not be incon-
sistent with the authority hereinbefore granted to the Governor of our
said island respecting tbe appointing of tbe times at whieh and the
places to which tbe Judges of the said Supreme Court shall perform
their eircuits, together with sucb general rules and orders as to them
shall seem meet, and touching and concerning the form and manner of
proeeeding to be observed in the said Supreme Court at any general
sessions, and at such civil and criminal sessions as aforesaid on such
circuits as aforesaid, or in tbe district of Colombo and in such District
Courts respectively, and touching aud conceming the practice and




CEYLON-CHARTER OF JUSTICE. 568'
pleadings upon all actions, suits, and other matters, both civil and
criminal, to be tberein brought, the proceedings of the fiscals and other
ministerial officers of the said courts respectively, the process of the
said courts, and the mode of executing the same, the qualifications, sum-
moning, impannelling, and challenging of assessors, and the summon-
ing, impannelling, aud challenging of jurors, arrest on mesne process 01'
in execution, the taking of bail, the duties of gaolers and others charged
with the custody of prisoners, in so far as respects the making due
returns to the respective J udges of the said Supreme Court of allpri-
soners in their custody, and respecting the mode of proseeuting such
appeals as aforesaid from the said District Courts, the admission of
advocates and proctors in the said courts respectively, together with all
such general rules and orders as may be necessary for giving full and
complete effect to the provisions of this present chárter, in whatsoever
respecta the form and manner of administering justice in the severa!
courts hereby constituted, and all such rules, orders, and regulations
from time to time to ~voke, alter, amend, and renew, as occasion may
require: Provided always, that no such rules, orders, 01' regulations
shall be repugnant to this our chárter, and that the sanie shall be so
framed as to promote, as far as may be, the discovery of truth and
ecoDomy and expedition in the despatch ofbusiness of the said several
courts respectively, and that the same be drawn up in plain, succinct,
and compendious terms, avoiding all unnecessary repetitions and ob-
scurity, and promulgated in the most public and autheatíc manner iR
the said island, as long before the same shall operate and take effe.ct as
to such Judges may appear practicable and convenient, and provided
always, that all such rules, orders, and regulations shall forthwith be
transmitted to us, our heirs, and successors, under the seal of the said
court, for our al' their approbation 01' disallowance.


61. And we do further grant, ordain, direct, and appoint, that it shall
be lawful for any person 01' persoDs being a party 01' partíes to any ch-U
suit 01' action depending in the said Supreme Court, to appaal to us,
our heirs,and successors, in our 01' their Privy Council, against any
final judgment, decree, 01' sentence, 01' against any rule 01' order mude
in any sueh civil suit 01' action, and having the effect of a final or defi-
nitive sentence, and which appeals shall be made subject to ths rules
and limitations following; that is to say, First, that before any sueh
appeal shall be so brought, such judgment; decree, sentence, wiIl, al
order shall be brought by way of review before the Judges of the said
Supreme Court collectively, holding a general sessions at Colombo, at
which all the said Judges of the said Supreme Court shall be present
and assisting, which J udges shall by sueh rules and orders as aforesaid
regulate the form and manner of proceeding to be observed in bringing


- 002




564 CEYLON-CHARTER OF JUSTICE.
every such judgment, decree, sentence, rule, or order by way of review
before them, and shall thereupon pronounce judgment according to law,
the judgment of the majority of which J udges shall be taken and recorded
as the judgment of the said court eollectively. Seeondly, every such
judgment, decree, order, or sentenee from which an appeal shall be
admitted to us, our heirs, and suceessors as aforesaid, sball be given or
pronounced for or in respect of a sum or matter at issue above the
amount or value of .f500 sterling, or shall involve directly or indirectly
the title to property or to sorne civil right exceeding the value of .f500
sterling. Thirdly, tbe person or persons feeling aggrieved by sueh
judgment, decree, order, or sentenee, shall within fourteen days next
after the same shall have been pronounced, made, or given, apply to
the said Supreme Court at such general sessions as aforesaid, by
petition, for leave to appeal therefrom to US, our heirs, and successors,
in our or their Privy Council. Fourthly, if such leave to appeal shall
be prayed by the party or parties who is or are adjudged to pay any
sum of money or to perform any duty, the said 'Supreme Court shaIl
direet that the judgment, deeree, or sentence appealed from shall be
earried into execution, if the party or parties respondent shall give
security for the immediate performance of any judgment, decree, or
sentence which may be pronounced or made by us, our heirs, and suc-
cessors, in our or their Privy Council, upon any such appeal, and until
such security be given the execution of the judgment, deeree, order, or
sentence appealed from shall be stayed. Fifthly, provided nevertheless,
that if the party or parties appellant shall establishto the satisfaetion
of the said Supreme Court, that real and substantial justiee requires
that, pending such appeal, exeeution should be stayed, it shall be law-
ful for sueh Supreme Court to order the execution of sueh judgment,
decree, order, or sentenee to be stayed pending such appeal, if the
party or parties appellant shall give seeurity for the immediate per-
formance of any judgment, deeree, or sentenee whieh may be pro-
nounced or made by lis, our heirs, and successors, in our or their Privy
Council, upon any sueh appeal. Sixtbly, in all cases security shall be
given by the party or parties appellant for the proseeution of the
appeal, and for the payment of all such eosts as may be awarded by US,
our heirs, and successors, to the party or parties respondent. SeventfíIy,
the eourt from whieh any such appeal as aforesaid shall be brought,
shall, subjeet to the conditions hereinafter mentíoned, determine the
nature, amount, and sufficiency of the several securities so to be taken
as aforesaid. Eighthly, provided nevertheless, that in any case where
the subject oflitigation shall consist of irnmoveable property, and the
judgment, decree, order, or sentenee appealed from shall not change,
affect, or relate to the actual occupation thereof no security shall be




CEYtON-CIIARfER OF JUSTICE. 565
rlemanded either from the party or parties respondent, or from the party
or parties appellant, for the performance of the judgment or sentence lo
be pronounced al' made upon such appeal ; but if such judgment,
deeree, arder, or sentence shall chango, affect, or relate to the occupa-
tion of any such property, then such security shall not be of greater
amount than may be necessary to secure the restitution, free froro all
damage or loss, of such property, or of the intermediate profit which,
pending any sueh appeal, may probably accrue from the interroediate
occupation thereof. Ninth!y, in any case where the subject oflitigation
shall consist of money or other chattels, 01' of any personal debt or
dernand, the seeurity to be demanded, either from the party or parties
respondent, or from the party or parties appellant, for the performance
of the judgment 01' sentence to be pronounced or roade upon such
appeal, shall be either a bond to be entered into in the amount or value
of sueh subjeet of litigation, by one or more sufficient surety al' sureties,
or such security shal1 be given by way of mortgage or voluntary con-
demnation of 01' upon sorne immoveable property situate and being
within such island, and being of the full value of such subject of
litigation, over ami aboye the amount of all roortgages and charges of
wbatever nature upon or affecting the same. Tenthly, tbe security to
be given by the party 01' parties appellant for tbe prosecution of the
appeal and for tho payment of costs, shall in no case exceed the sum of
.f300 sterling, and shall be given either by such surety or sureties, or
by such roortgage or voluntary condemnation as aforesaid, Eleventhly,
if the security to be given by the party or parties appellant for the pro.
secntion of the .appeal and for the payment of such costs. as roay be
awarded, shall in manner aforesaid be coropleted within three months
froro the date of the petition for leave to appeal, then, and not otherwise,
the said Supreme Court shall make an order allowing such appeal, and
the party or parties appellant shall be at liberty to prefer and prosecute
his, her, or their appeal to us, our heirs, and successors, in our oro their
Privy Council, in such manner and under such rules as are observed in
appeals made to us in our Privy Council from our plantations or
colonies. Twelfthly, provided nevertheless, that any person or persons
feeling aggrieved by any arder which may be made by, or by any pro-
-eeedings of the said Supreme Court respecting the security to be taken
upon any such appeal as aforesaid, shal1 be and is herebyauthorized by
his, her, or their petition to us in our Privy Council, to apply for redress
in the premises.


62. Provided always, and we do further ordain, direct, and declare,
that nothing herein contained doth 01' shall extend to take away or
abridge the undoubted right or authority of us, our heirs, and successors,
to admit and receive any appeal from any j udgment, decree, sentence, or




566 CEYLON-CHARTER OF JUSTICE.
order of the said Supreme Court, on the humble petition of any person
01' persons aggrieved thereby, in any case inwhich, and subject to any
contlitions 01' restríctions upon and under which it may seem meet to
us, our heirs, and successors, so to admit and receive any such appea\.


63. And we do further direct and ordain, that in al! cases of appeal
allowed by the said Suprema Court, 01' by us, our heirs, and successors,
such court shall, on the application and at the costs of the party or parties
appellant, ccrtiíy and transmit to us, our heirs, and successors, in our
or their Privy Council, a true and exact copy of al! proceedings,
evidence, judgments, decrees, and orders had or made in sueh causes
so appealed, so far as the same have relation to the matter of appeal,
such copies to be certified under the seal of the said court,


64. And we do further ordain and direct, that the said Supreme
Court shall, in al! cases of appeal to us, our heirs, and successors, con-
form to, execute, and carry into immediate effect, such judgments and
'orders M we, our heirs, and successors, in our 01' their Privy Council,
shall make therenpon, in sueh manner as any original judgment or de-
cree of the said Supreme Court can or may be executed.


65. And we do further ordain and direct, that al! laws, customs, aOO
usages, now or at any time hereafter established or in force in the said
island, so far as such laws 01' usages are in anywise repugnant to or at
variance with this present chárter, shall be and the same are hereby
revokedvabrogated, rescinded, and annulled.


66. And we do further declare, that for the purpose and within the
meanirrg of the present chárter, any person lawfully administering for
the time beingthe government of the said island, shall be deemed and
taken to be the Governor thereof,


67. And we do further ordain and direct, thnt at the expiration of
twocalendar months next after the arri val withiu the said island of these
pteserits, orat sueh earlier period as the Governor for the time being of
the said island shall, by a proclamation to be for that purpose issued,
'a'ppoint,this 'OUT chárter shall come int-ooperation within the said
rsland ; and from that time forward every suit, action, complaint, mat-
ter, 01' thing which llhall be then depending before any eourt administer-
ing justice by original 01' appellate jurisdiction in the said island and
its dependencies, shalI and may be proceeded upon in the court in
which it ought to have beeu instituted, or to which it ougbt to have been
carried up in appeal, if it had been instituted or carried up in appeal
after the time when the provisions herein contained shall have come


-into operation; and aIl proceedings which shall hereafter be had in such
suit, action, complaint, matter, or thing respectively, shaIl be conducted
in like manner as if such suit, action, complaint, matter, 01' thing had
been instituted 01' carried up in appeal in or to such last-mentioned




CEYLON-CHARTER OF JUSTICE. 561
court; and aH the records, munírnents, and proceedings whatsoever
belonging or pertaining to any such suit, action, complaint, matter, or
thing, shall, when the provisions herein contained shall have come into
operation, be delivered over by the court in which such suit, action,
complaint, matter, or thing shall be then depending to the court in
or to which such suit, action, complaint, matter, or thing ought to have
been instituted or carried up in appeal, if it had been instituted or car-
ried up in appeal after the time when the provisions herein contained
shall have come into operation,


68. And we do hereby strictIy charge and command all Governors,
Cornmanders, Magistrates, Ministers, civil and military, and all our liege
subjects within and belonging to the said island and its dependencies, that
in the execution of the several powers, jurisdictions, and authorities here-
by granted, made, given, or created, tbey be aiding and assisting and
obedient in all things, as they will answer the contrary at their peril,


69. Provided always, that nothing in these presenta contained, or
any act which shall be done under the authority thereof, shall extend or
be deemed or construed to extend to prevent us, our heirs, and succes-
sors, byany other lctters-patent to be by us or them from time to time
for that purpose issued under the great seal of the United Kingdorn,
from revoking this our charter or any part thereof, or from rnaking such
further or other provision for the administration of justice throughout
the said island and its dependencies, at our and their will and pleasure,
as circumstances may require ; we meaning and intending fully and
absolutely, and to all intents and purposes whatsoever, to reserve 10
ourselves, our heirs, and successors, such and the same rights and
powers in and over the said island and its dependencies, and especially
touching the administration of justice therein, and all other matters and
things in and by these presents provided for, as if these presenta had
not been made ; anything in these presents contained, or any law, cus-
tom, usage, matter, or thing whatsoever to the contrary in anywise noto
withstanding. In witness whereof we have caused these our letters to
be made patento Witness ourself at Westminster, the 18th day ofFe-
bruary, in the third year of our reign,


By writ of Privy Seal.
(Countersigned) BATHURST.


SUPPLEMENTARY COMMISSION.


WILLIAM the Fourth, by the Grace of God, of the United Kingdom of
Great Britain and Ireland King, Defender of the Faith, To our right
trusty and well-beloved councillor, Sir Robert John Wilmol Horton,




5GB CEytoN-SUrpI.ElYl.I<:NTAHY COllIMtSSION.
right greeting: Whereas by letters-patent under the great seal of our
United Kiogdom of Great Britain and Ireland, bearing dale at West-
minster, on the 23d day of April, 1831, in the first year of our reign,
we did constitute and appoint you to be, during onr \ViII and pleasure,
our Governor and Commander-ín-Chief in and over our settlernents in
Ceylon, in the Indian Seas, and did thereby declare our pleasure to be,
that there should be within our said island of Ceylon a Council of Go-
vernment, to be constituted in such manner as in your general instruc-
tions therewitb given to you was in that behalf directed, and did thereby
give and grant to you tbe said Sir Robert John Wilmot Horton, full
power and authority, with the advice and consent of the said Council
of Government, to make, enact, ordain, and establish laws for the
order, peace, and good government of our said island, subjeet to a11
such rules and regulations as therein mentioned : Now we do hereby
revoke so much of the said Ietters-patent as relates to the said Couneil
of Government; and we do heteby further declare our pleasure to be,
and do grant, ordain, and appoint, that there shall be wilhin our said
island of Ceylon two separate Councils, that is to say, one Council lo
be called the Legislative Council, and the other Council to be called
the Exeeutive Couneil: and we do direet that the said Couneils shall
respeetively be constituted in sueh manner as is .in that behalf directed
by the instructions herewith given to you, 01' according to such further
powers, instruetions, and authorities as shall at any future time be
granted to or appoinled for you under our signet and sign manual, 01'
our order in our Privy Council, 01' by us, through one of our principal
Secretaries of State: And we do hereby give and grant to you the said
Robert John Wilmot lIorton, full power and authority, with the advice
aud consent of the said Legislative Couneil of OUT said isIand, to make,
enaet, ordain, and establish laws for the order, peace, and gooc.l go-
vernment of our said island, subject nevertheless to all such rules and
regulations as by the instructions herewith given lo you, we have thought
fit to prescribe in that behalf: Provided nevertheless, and we do
hereby reserve lo curselves, our heirs, and sueeessors, OUT and their un-
doubted right and authority lo disallow any such laws,and to make and
establish from time to time, with the advice and consent of Parliament,
01' with the adviee of our 01' their Privy Council, al! such laws as may
lo us 01' them appear necessary lo the order, peace, and good govern-
ment of OUl' said island and its dependencies, as fully as if these
presents had not been made, In witness, &e., witness, &c. And for
so doing this shall be YOUT warrant, Given at OUT Court at St, James's,
the 19lh day of March, 1833, in the third year of our reign.


By His Majesty's command.
GODERICn.




CEYLON-SUPPLEMENl'ARY COMl\IISSION. 569


WILLTAM R.
[nstrnctions to 0/11' right trusty ami tiell-beloccd Councdlor, Sir


Robert John Willllut Hortun, F:nig/¡f, our Gotemor and Com-
mander-in-Chief in antl otcr our Island o/ Ceylun and its de-
pendencies. Given at om' Court at Sto James's, the 20th da!! (!J'
March, in the third year of OUl' reign,
1. \VIIEREAS by a commission under our great seal of our United


Kingtlom of Creat Britain and Ircland, bearing date the Q3d day of
April, 1831, in the first year of our reign, we did constitute and appoint
you, during our pleasure, our Covernor and Commander-iu-Chief of
and over our island of Ceylon, in the Ludian Seas; and by certain
letters-patent, bearing date the 19th day of March instant, in the third
year of our reign, we did revoke certain parts of that commission, and
did declare our pleasure to be, that there should be within our said
island two sepárate Councils, to be called respectively the Legislative
Council and the Executive Conncil: And whereas by the said commis-
sion and lettcrs-patent respectively, we did, amongst other things, refer
lo and reqnire yon to conform to and observe such general instructions
as are therein rcspectively mentioned: And whereas the general instruc-
tions under our signet and sign manual, referred to in your said como
mission, bore date on the 30th day of April, 1831, and accompanied the
same: And whereas we have deemed it expedient to revoke the said
general inslructions, and to substitute the general instructions following :
Now, therefore, we do hereby declare our pleasure to be, that the said
general instructions of the 30th day of April, 1831, shall be and the
sume are hereby absolutely revoked and anuulled accordingly ; we
hereby in place and stead thereof substituting and reqniring you aud all
others whom it may concern, to conform to and observe the several
instructions following, that is to say :


2. You having, in pursuance of our said commission and former
instruetions, already taken the several oaths therein mentioned, it is our
wiU and pleasure that the Lieutenant-Governor, 01' oflicer who, in the


-event of your death 01' absence from the said island, may he appointed
to the temporary administration of the government in our said island,
shall on his assuming and enlering upon the execution ofsuch oflice, with
all due solemnity, cause our commission to be read and published in
the presenee of the Chief Judge and members of the Executive Council,
and sball then and there take the oaths appointéd to be taken by an act
passed in the first year oC the reign of King Ceorge the First, intituled
" An Act for tbe further security of His lVIajesty's person and gove¡n-




570 CEYLON-SUPPLEMENTARY COMM1SSION.
ment, and thesuccessioa ofthe Crown in the heits of the late Princess
Sophia, being Protestants, and for extinguishing the hopes of the pre-
tended. Prince of 'Vales and his open and concealed abettors," as
altered and explained by an aet passed in the sixth year of his late Ma-
jesty King George tj¡e Thírd, intituled, "An Aet for altering the Oath
of Abjuration and the Assurance, and for amending so much of an act
of the seventh year of her late Majesty Q\leen Anne, intituled, 'An Act
for the Improvement of the Union of the two Kingdoms, as after the
time therein limited requires the delivery of eertain lists and copies
therein mentioned to persons indicted of high treason 01' misprision of
treason,''' 01' in lieu thereof, the oath required to be taken by an aet
passed in the tenth year of the reign of his late Majesty King George
theFourth, intituled, "An Act for the Relief of His Majesty's Roman
Catholic Subjeets," aeeording as the said former aets 01' the said last-
mentioned aet shall be applicable to your case; and likewise that you do
take the usual oath for the due execution of the office of our Governor
and Commander-in-Chief in and over our said island, and for the due
and impartial administratiou of justiee; and further that you do take
the oath required to be taken by the Governors of plantations, to do
their utrnost that the severallaws relating to trade and to the plantations
be duly observed, which said oaths the Chief Judge for the time being
of our said island shaU and he is hereby required to tender and admi-
nister to you; all which being duly performed, the Governor, Lieutenant-
Governor, 01' officer appointed as aforesaid, shall administer to the said
Chief Judge and to the members hereinafter appointed of our said
Exeeutive Council, and of the Legislative Councilof the said island
respectively, such of the oaths mentioned in the said several aets
as shall be applicable to the case of such judge and of the individual
member of our said respective Councils taking the same; and you are
also to administer unto them the usual oath for the due execution of
their places and trusts respectively, all which oaths shall also be admi-
nistered by tbe Governor, Lieutenant-Governor, 01' person administering
the government of our said island for the time being, lo all scch persons
as shall hereafter be appointed to be members of our said Couneils re-
speetively, before they respeetively enter upon the exeeution of the du-
ties of such their office.


3. And we authorize and require the Governor, Lieutenant-Governor,
01' offieer administering the government as aforesaid of our said island;
from time to time and at any time hereafter, by himself, 01' by any other
to be authorized by you in that behalf, to administer and to give to all
and every such person 01' persons as you 01' he shall think lit, who shall
hold any office 01' place of trust 01' profit, 01' who shall at any time 01'
times pass into our said island, 01' be resident 01' abiding there, such


..




CEYLON-SUPPLEMENTARY COMMISSION. 571
of the said oatbs in the said several acts contained as shall be ap-
plicable to the case of the individual to whom the same sha11 he admi-
nistered.


4. And whereas by the said letters-patent under the great seal of our
United Kingdom of Great Britain and lreland, bearing date the 19th
day of March, 1833, wedeclared our will and pIeasure that there should
be within our saíd island of Ceylon a Council, to be called the Legisla-
tive Council of our said is!and, to be constituted in such manner as in
your general instructions in that behalf should be directed: Now we
do hereby signify and declare our pleasure to be, that the said Legisla-
tive Council of our said island of Ceylon sball always consist of fifteen
persons, of wbom nine sha11 at all times be p€rsons holding ofíices within
the said island al our pleasure, and the remaining six shaU at all times
be persons not holding any such offiee.


5. And we do hereby declare and appoint that the Chief Justice of
the Supreme Court of our said island for the time being; the senior
officer for the time being in command of our land forces in the said
island, and not being in the administration of the government tbereof;
the Colonial Secretary for the time being; the Auditor-General for the
time being; the Colonial Treasurer for tbe time being; the Government
Agent for the Western Province for the time being; the Government
Agent for the Central Province for tbe time being; the Surveyor-Gene-
ral for the time being; and the Collector of Customs at our port of
Columbo for the time being, shall be such. nine official members as
aforesaid; and tbat any persons lawfully executíng the duties oí tIle
said several offices,or any of thern, during the absenee, or suspension,
or incapacity, or upon the death or resignation of any such officers, shall,
during the performance of any such duties, be tbe official members of
the said Legislative Council, as fully and effectually as tbougb they had
been by us appointed to such their offices,


6. And we do further declare and appoint that six persons, tú be by
you selected for tbat purpose from and out of too chief'Ianded proprie,
tors and principal merchants ofthe said island, who have been actually
resident for a period of not Iess than two years in the said island, shall
be the first or original un-offícialmembers oí the ·said Legislative COUF¡-
cil, and shall respectivelyhold tbeir places therein during OUT pleasuro,
and which first or origina! un-official members shall by you be ap-
pointed by commissions to be for tbat purpose issued under the public
seal of OUl' said island,


7. And upon the death, incapacity, absence from the said island, sus-
pension, or resignatíon of any ofthe said un-official members of the
said Legislative Council, we do authorize and empower"you to nominate
and appoint by a commission, to be for tbat purpose issued under the




572 CEYLON-SUPPLEMENTARY COMMlSSION.
public seal of our said island, any fit and proper person 01' persons to
fill any such vacancy 01' vacancies in the said Legislative Council, who
sball be so appointed only until our pleasure shall be known.


8. And we do require you immediately to signify to us any original
01' subsequent appointment as aforesaid, to the intent that the same may
by us be confirmad or disallowed as we shall see occasion.


9. And we do furtber declare our pleasure to be, that the said Legis-
lative Council shall not be competent to act in any case unless six mem-
bers at tbe least of such Council, in addition to yourself, 01' to the
member who may preside therein in your absence, shall be present at
and throughout the meetings of such Counci!.


10. And we do further declare, that in the said Legislative Council
the official members shall take precedence of the un-official members,
and that the offíciul members shall between themselves take precedence
according to the order in which their respective offíces are hereinbefore
enumerated, and that the said un-official members shall among them-
selves take precedence according to the priorities of their respective
appointrnents.


11. And we do authorize and requirc you to preside in the said Le-
gislative Council, except when you may be prevented by some in-
superable impediment, and at any meetings of the said Council which
may be holden during YoU\' absence, we do authorize and require the
senior member present to preside. And we do further declare our will
to be, that all questions proposed for debate in the said Legislative
Council shall be decided by the majorily of votcs, it being our pleasure
that you, 01' the member presiding in yoU\' absence, shall have an
original vote in common with the other membcrs of the said Council,
as also a casting vote, if upon any question tbe votes shall be equally
divided.


12. And for insuring punctuality of attendance of the members of
the said Legislative Council, and for the prevention of meetings of the
said Council being holden without convenient notice to the several


. members thereof, it is our pleasure and we do hereby direct, that you
do frame aud propose to the said Legislative Council for their adoption
such standing rules and orders as may be necessary for those purposes,
with such other standing rules and orders as may be best adapted for
maintaining order and method in tbe despatch of business and in the
conduct of all debates in the said Council, which rules and orders not
being repugnant to your said commission, al' to the said letters-patent, 01'
to these your general instructions,or to any other instructions which you
may receive from us, shall at all times be followed and observed, and
shall be binding upon the said Legislative Council, unless the same or
any of them shall be disallowed by uso




CEYLON-SUPPLEMENTARY COMMISSTON. 573
13. And whereas we have by our said commission given and granted


to you full power and authority, with the advice and consent of the said
Legislative Council of our said island of Ceylon, to make, enact, ordain,
and establish laws for the order, peace, and good government of our
said island, subject nevertheless to all such rules and regulations as
by our general instructions we should think lit to prescribe in that behalf':
Now we do hereby declare the following to be the several rules and
regulations so mentioned and referred to in your said commission.


14. It is our will and pleasure and we do hereby direct, that no law
01' ordinance shall be made 01' enacted by the said I,egislative Council,
unless the same shall have been previously proposed by yourself, and
that no question shall be debated at the said Council, unless the same
shall ñrst have been proposed for that purpose by you.


15. Provided nevertheless, and it is our pleasure, that if any member
of the said Legislative Council shall deem any law lit to be enaeted by
the said Council, 01' any question proper to be there debated, and shall
of such his opinion transmit a written statement to you, it shall be law-
ful for any such member of the said Legislative Council to enter upon
the minutes thereof a copy of any such statement, together with the rea-
son upon which such his opinion may be founded.


16." And we do further direct that minutes be regularly kept ofthe
proceedings of the said Legislativo Council by the Colonial Secretary
01' his assistant, and that the said Legislative Council shall not ever
proceed to the despateh of business until the minutes of the last pre-
ceding meeting have first been read and eonfirmed 01' eorrected as may
be neeessary.


17. And we do further require and enjoin you twice in each year to
transmit to us through one of our principal Secretaries of State, a full
and exact copy of the minutes of the said Legislative Council for the
last preeeding half-year, with an index to the subjects contained therein,


\ 18. And it is our further pleasure that you do not propose or assent
lo any ordinance whatever respeeting the eonstitution, proeeedings,
numbers, 01' mode of appointing or eleeting any of the members of the
said Legislative Couneil or otherwise, in relation to any of the matters
mentioned or referred to in ·your said commissíon and in these our in-
struetions, which shall he in anywise repugnant to 01' inconsistent with
such commission or instructions, 01' repugnant to any Act of Parlia-
ment, 01' to any order made or to be made by us in our Privy Council,
extending to or in force within our said island, but that any sueh ordi-
nance 01' pretended ordinances shall be absolutely null and void to all
intents and purposes.


19. And you are expressly enjoined not to propose or assent to any
ordinance whatever whereby any person may be impeded or hindered




5'14 CEYLON-SUPPLEMENTARY COMMISSION.
from celebrating or uttending the worship of Almighty God in a peace-
able and orderly manner, although sueh worship may not be condueted
according to the riles and ceremonies of the Chureh of England.


20. And we do further enjoin you not to propose or assent to any
ordinanee whatever whereby any new rate 01' duty may be imposed or
levied, 01' our revenue might be lessened or impaired, or whereby our
prerogative might be diminished or in any respect infringed, 01' where-
by any increase 01' diminution might be made in number, allowanee, 01'
salary of any public officers which have or shall have reeeived our
sanction, without our speeialleave or eommand therein first reeeived.


21. And we do further direet, that you do not propase or assent to
any ordinanee whatever whereby bilis of eredit or debentures, or other
negociable seeurities of whatever nature, may be issued in lieuof money
on the credit ofthe said island, 01' whereby any government papel' cur-
reney may be established therein, or whereby any such bilis, or any
other paper eurreney, or any cain, save only the legal eoin óf the realm,
may be made 01' declared to be a legal tender, without special permis-
sion from us in that behalf first obtained.


22. And we do further enjoin and command you not to propase or
assent to any ordinanee whatever by whieh persons, not being European
by birth or deseent, might be subjeeted or made liable to uny disabilities
or restrietions to whieh persons of European birth or deseent wonld not
be also subjected or made liable.


23. And it is our further pleasure that you do not propose or assent
to any ordinances whatever for raising money by the. institution of any
publie or prívate lotteries.


24. And it is our will and pleasure that you do not propose or assent
to any ordinanee whatever for the naturalization of aliens, or for the
divorce of persons joined together in holy matrimony, 01' for establishing
a title in any person to lands or other immoveable property aeqnired by
any alíen before his or her naturalization,


25. And we do further direct that you do not propase or assent to
any ordinanee whatever by which any tax or duty might be imposed
upon transient traders, or upon persoos residing and carrying on business
for a shqrt time within our said island, from which other traders or per-
sons carrying on the like business would be exempt.


26. And we do further direct that you do not propase or assent to
any ordinanee whatever whereby any grant of money or other donation
or gratuity may be made by the said Legislative Council to you, or to
any member of the said Couneil.


27. And we do further order and direet that you do not propase or
assent to any private ordinance whatever whereby the properly of any
individual may be affected, in which there is not a saving of tbe rights




CEYLON-SUPPLEMENTARY COMMISSION. 575
of us, our heirs, and successors, and of aJl bodies politic and corporate,
and of aH other persons, excepting those at whose instance 01' for whose
especial benefit such ordinance may be passed, and those claiming
by, from, through, and under them.


28. And it is our will and pleasure that you do not propose or assent
to any ordinance whatever to which our assent has once been refused,
without express leave for that purpose first obtained from uso


29. And for the sake of orderIy despatch, and the prevention of all
undue precipitation in the enactment of ordinances intended to affect
the property ofindividuals by the said Legislative Council, we dohereby
authorize and require you from time to time, as occasion may require,
ti) frame and propose to the said Council for their adoption, such stand-
ing orders, rutes, and forms of proceeding as may be best adapted for
the purposes aforeseid, and for insuring previously to the passing of
any ordinance intended to affect 01' benefit private persons, that due
notice may be given to all parties concemed of the provisions thereof,
with ample opportunity for opposing the same, and that a full and im-
partial examination may take place of the grounds upon which the same
may be proposed 01' resisted; and we do authorize you from time to
time, with the consent of the said Council, to revoke, alter, 01' renew
such rules, orders, and forms as there may be occasion; and we do direct
that the same, when adopted by them, shaJl be duly observed in all their
proceedings.


30. And it is our further will and pleasure, tbat al! laws to be en-
acted by the said Legislaúve Council shall henceforth be styled "Ordi-
nances enacted by the Governor of Ceylon, with the advice and consent
of the Legislative Council thereof ;" and that no other style 01' forro
shall ever henceforth be observed in any such enactments, and that a11
such ordinances be drawn in a simple and compendious form, avoiding
prolixity and tautology.


31. And we do further direct, that when any ordinance shall have
been passed by yon, with the advice of the said Legislativa Council, the


l' same shall be forthwith laid before you for our final assent, disallow-
ance, 01' other direction thereupon, to be signified through you, for
which purpose we do hereby require you with all convenient speed to
transmit to us, throngh one of Out principal Secretaries of State, a
transcript in duplicate of every such ordinance as aforesaid, duly authen-
ticated under the public seal of the said island, and by your own signa-
ture; and we do direct that every such transeript be transmitted by the
earliest occasion next after the enactment of the said ordinance, and
that no such ordinance be made to take effect until our pleasure there-
upon be first made known and signified to you, and by you to the
[nhabitants of the said island, excepting only in the case of ordinances




576 CEYLON-SUPPLEMENTARY COMMISSION.
for raising the annual supplies for the service of the said island, and in
any other cases in which the delay incident to a previous communica-
tion with us would be productiva of serious injury or inconvenience, in
which several cases we do hereby authorize you, with the advice of the
said Legislative Council, to determine the time at which any sueh ordi-
nance sha11 take effect and have its operation within the said island;
which proceeding, with the reasons thereof, yon shall on the earliest
occasion report lo us through one of our principal Secretaries of State.
And we do hercby reserve to us, our heirs, and successors, full power
and authority to confirm and final1y enact or to disallow -any ordinance
which may be passed by you, with the advice and consent of the said
Legislative Council, cither in whole or in part, such confirmation or
disallowance being from time to time signified to you through one of
our principal Secretaries of State. And we do further reserve to our-
selves, our heirs, and successors, with the advice of our and their Privy
Council, full power and authorityto amend any suchordinance as afore-
said in such manner as may be necessary and expedient; and if on
any occasion our pleasure should not be signified to you upon any such
ordinance as aforesaid within three years next after the date thereof,
then and in every such case it is our pleasure that from and after the
expiration of such term of three years, such ordinance sha11 be deemed
to be disa11owed, and sha11 thenceforth cease to have any force or effect
within our said island.


32. And we do require and enjoin you to transmit to the Chief
Judge ofthe Suprema Court of Judicature of the said island, to be en-
rolled in the said court, a transcript, duly authenticated in the manner
before-mentioned, of every ordinance to be passed by you, with the
advice and consent of the said Legislative Council, together with a cer-
tiflcate under your hand and seal of the effect of every order which you
may receive from us for confirming or disallowing in the whole or in
part, or for amending the provisions of any such ordinance, which cer-
tificates shal1 in like manner be enro11ed in tbe said court, and there
remain on record, to the intent that the judges of the said court may, '
witbout further or other proof, take cognizance of a11 ordiuances to be
made and promulgated for tbe peace, good order, and government of
the said island: Provided always, and we do hereby declare, that the
judges of the said court have not and sha11 not have any right or
authority to prevent or delay the enrolment of any such ordinance, and
tbat the validity thereof doth not and shall not depend upon such en·
rolment.


33. And we do further declare our pleasure to be, that in tbe montb
of J anuary, or at the earliest practicable period at the commencement
of each year, you do cause a complete collection to be published for




CEYLON-SUPPLEMENTARY COMMISSION. 577
general information of all ordinances enrolled during the preeeding
year. And we do,particularly require and direct that transeripts of al!
minutes and proeeedings of the said Legislative Couneil be regularly
transmitted every six months without fail, for our information, through
one of our principal Secretarios of State.


34. And we do further direct, that a11 ordinances to be made by you,
with the advice of the said Legislative Council, be distinguishcd by
titles, and that the ordinances of each year be' also distinguisilied bynu-
merical marks, commeneing on each successive year with number one,
and proceeding in arithmetieal progression to tbe numbereorrespond-
ing with the total number of ordinanees enacted during tbe year; and
that every such ordinanee be divided into suecessive clauses 01' para-
graphs, distinguisbed in like manner by numerical marks, and that to
every such clause be annexed in the margin a sbort summary of its
contents; and you are to observe that subjects which have no proper
relation to each other, be not comprised in one and the same ordinance;
and that no enactments be introdueed into any sueh ordinanee which
may be foreign to its professed seope and objeet; and that no perpetual
clause be part of any temporary ordinanee; and that no law 01' ordi-
nance be suspended, altered, eontinued, revised, 01' repcaled by general
words, but that the title and date of evel'Y sueh law 01' ordinanee be
partieularly mentioned and expressed in the ordinance suspending,
altering, eontinuing, revising, 01' repealing the same,


35. And we do direct that no law shall by you be proposed to the
said Legislative Couneil 01' enacted by them, unless the draft of the
same shall first have been published in tbe Gazetle of our said island,or
otherwise made publiely known for at least three weeks next before the
enaetment thereof.


36. And whereas by our said letters-patent we have, as before men-
tioned, signified OUT pleasure to be, tbat there sbould be within our said
island a Council, to be called the Exccutive Couneil thereof, and to be
eonstituted in sueh manner as we should by these our instruetions direct :
Now we dodireet and declare that the said Exeeutive Council shall
consist of the several persons fo11owing; that is to say, the senior offieer
in command of our land forees in the said island, and not being in the
administration of the government thereof; the Colonial Secretary for
the time being; the King's Advocate for the time being; the Colonial
Treasurer for the time being; and the Government Agent for the Cen-
tral Province for the time being.


37. And we do hereby direet and require, that in the execution of
the powers and authorities cornrnitted to you by your said commis-
sion, you do in a11 cases eonsult with the said Executive Council,
excepting ouly when the matters to be decided shall be too uuimportant


p p




578 CEYLON-SUPPLEMENTARY COMMISSION.
to require their advice, 01' too urgent to admit of such advice being
given by the time within which it may be necessary for you to act in
respect of any such matters ; provided that in all such urgent cases you
do subsequently and at the earliest practicable period communicate to
the said Executive Council the measures which you may so have adopted
witb the reasons thereof.


38. Ang we do authorize and require the said members of the said
Executíve-Council lo meet in obedience to any summonses which shall
by you for tliat purpose be addressed to them, and to consult with and
advise yoo upon any question connected with the executive government
of our said island, which may by you be proposed for their considera-
tion: provided always that two of such members atthe least be always
present on any such occasion, and that distinct minutes be kept oftheir
deliberations and proceedings, which minutes it shal! be the duty of the
said Colonial Secretary, 01' his assistant, to keep. And we do require
you to transmit to us, twice at least in each year, through one of our
principal Secretaries of State, full and exact copies of al! such minutes.


39. And we do authorize you in your discretion, and if it shall in
any casc appear right so to do, to act in the exereise of the power coro-
mitted to you by YoU!' said commission, in opposition to the advice
which may in any such case be given to you by the members ofyour
said Executive Council; provided nevertheless that, in any such case,
you do fully report to us, by the first convenient opportunity, every
such proceeding with the grounds and reasons thereof.


4Ó. And wbereas we have by our said eommission given to you full
power and authority in our name and in our behalf, but subject nevero
theless to sueh provisions as are in this respect contained in your
general instructions, to make and execute in our name, and under the
public seal of our said island, grants of waste lands to us belonging
within the same, to private persons, 01' for the public uses of our sub-
jects there resident: Now we do hereby require and authorize you,
from time to time as occasion may require, to cause a11 necessary
surveys to be made of the vacant 01' waste lands to us belonging in our
said island, and to cause the persons making such surveys to report lo
you what particular lands it may be proper to reserve for public roads,
01' other internal communications by land 01' water, 01' as the sites of
towns, villages, churches, school-houses, 01' parsonage.houses, 01' as
places for the burial of the dead, 01' as places for the future extension of
any existing towns 01' villagcs, 01' as places fit to be set apart for the
recreation 01' amusement of the inhabitants of any town 01' village,
01' for promoting the health of such inhabitants, or as the sites of
quays 01' landing places 01' towing-paths, which it may at any future
time be expedient to erect, forrn, or establish on the sea-coast, 01' in the




CEYLON-SUPPLEMENTARY COMMISSION. 579
neighbourhood of navigable streams, or as places which it mayo be de-
sirable to reserve for any other purpose of public convenience, utility,
heaIth, or enjoyment; and you are speeiaIly to require persons making
sueh surveys to specify in their reports, and to distinguish in the charts
01' maps to be thereunto annexed, sueh traets, pieees, 01' parcels of land
within our said island as may appear to them best adapted to answer
and promote the several purposes before mentioned, And it is our
will, and we do strictly enjoin and require you, that you do not on any
pretence whatsoever grant, convey, 01' demise to any person 01' persons
any of the lands which may be so specified as fit to be reserved as
aforesaid, nor permit 01' suffer any such lands to be occupied by any
prívate person COI' any prívate purpose.


41. And we do further charge and require yon not to make any grant
of land to 01' in trust for or for the use of any prívate persoll, ,by any
one instrument, 01' by successive instruments, exceeding 100 acres in
the whole, without our speeial permission for that purpose first ob-
tained,


42. And whereas in and by your said commission we have granted
unto you power and authority, in out' name and in our behalf, to grant
to any person convicted of any crirue in any of the tribunals in our said
island an absolute 01' conditional pardon: Now we do enjoin and
require you, in every case where you shaIl be applied to for any such
pardon, and in every case whatever in which sentence of death shall
have been passed, to obtain from the judge who presided at the trial of
any such offender, a report in writing of the proceedings upon any such
trial, and of the evidence then addueed, and of the opinion of such
judge whether the eonviction of any such offender was obtained in due
course of law, and whether any reason exists for the total oro partial re-
mission 01' commutation of any such scntencc. And we do strictIy
command that you do not upon any occasion permit any such kind of
punishment to be inflicted as can in no case be inflicted by the law of
England; and "that you do not remit any fine 01' forfeiture above the
value of SOl. sterling, without previously signifying to us tie nature oí
the offence committed and the amount of the proposedremission, and
receiving our directions thereupon; but in the meanwhile it shaIl
be lawful for you to suspend the payment of such fine 01' forfeiture.


43. It being our intention that al! persona inhabiting OUl' island under
your government should have fuIl liberty of conscience, and the free
exercise of aIl such modes of religious worship as are not prohibited by
law, we do hereby require you to permit all persons within our said
island to have such liberty, and to exercise such modes oí religious
worship as are not prohibited by law, provided they be contented with
a quiet and peaceable enjoyment of the same, not giving offence 01'
scandal to the government.


PP2




580 CEYLON-SUPPLEMENTARY COMMIssION.
44. It is our further will and pleasure that you recommend proper


measures for erecting and maintaining schools in order to the training
up of youth to reading, and to a necessary knowledge of the principIes
of'religion. You are not however to propose 01' assent to any ordinance
respecting religion, without a clause suspending its operation until our
pleasure shall have been signified thereupon, unless a draft thereof shall
have been previously transmitted by you for our consideration and up-
proval,


45. And whereas we have by our said commission authorized you,
upon sufficient cause to you appearing, to suspend from the exercise of
bis office within our said ísland, any person exercising tbe same under
and by virtue of any commission 01' warrant granted 01' to be granted by
us, in our name 01' under our authority, and we have by the said com-
mission strictly required and enjoined you, in proceeding to any such
suspension, to observe the directions in that behalf given to you in and
by your general instructions : "Now we do charge and require you that,
before proceeding to any such suspension, you do consult with the said
Executive Council, and that you do signify, by a statement in writing
to the person so to be suspended, the grounds of such your intended
proceeding against him, and that you do call upon any such person to
communicate to you in writing a statement of thc grounds upon whieh
and the evidence by which he may be desirous to exculpate hirnself, and
that you transmit both of the said statements to us, through one of our
principal Seeretaries of State, by the earliest eonveyance.


46. And we do hereby direct and instruct you, that all cornmissions
and appointrnents to be granted by you to any person 01' persons for
exercising any offiee 01' ernployment in 01' coneerning the said island
be granted during pleasure only, and that whenever you shall appoint
to any vacant office 01' employment any persoll not by us especiaIly
directed to be appointed thereto, you shall at the same time expressly
apprize such person that such appointrnent is to be considered only as
temporary and provisional, until our allowance 01' disallowance thereof
be signified.


47. And whereas great prejudice may happen to our service and to
the security of the said island, by the absence of the Governor, you
shall not, upon any pretence whatever, quit the said island without
having first obtained leave from us for so doing under our sign manual
and signet, 01' through one of our principal Secretaries of State.


-


[The following account of the introduction of the jury
system in Ceylon was intended to be inserted in the ac-
count of the laws and of the courts of the colony, but was
by accident omitted from its proper place. The mistake




CEi'"LON. 581
was not discovered till the preceding sheet was printed off.
As it records an event of the greatest possible importance to
the colony, and reflects the highest honour on the right
honourable and learned judge by whom such an altera-
tion of the system t>f administering justice, in a distant
colony and among a foreign people unused to our institu-
tions, was planned and executed, it has been thought
right to insert it here ;.the more especiaHy since the most
wise and most politic measure thus adopted with the hap-
piest effect in Ceylon has been since advantageously imi-
tated with respect to our East Indian possessions.] .


From the yeal' 1802, the period at which the fírst royal
Charter of Justice for the Island of Ceylon was published
on that island, to the year 1811, justice had been admi-
nistered in the Supreme Court 01' Ceylon, both in civil
and criminal cases, by two European judges, according to
what is called in Holland the Dutch-Roman law, without
any jury,


In 1810 it was determined by His Majesty's ministers
in England, on the representation of Sir Alexander
Johnston, that thc two Europcan Judges of the Supreme
Court on that island should for the future, in criminal
cases, be judges only of the law, and that juries composed
of the natives of the island should be judges of the fact in
aHcases in which any native prisoners were concerned. In
November, 1811, accordingly, a new royal Charter of
Justice, under the great seal of England, was publishcd
in Ceylon, by which, amongsi other things, it was in sub-
stance enacted that every native of the island, of what-
ever caste 01' religious persuasion he might be, when tried
for a criminal offence before the Supreme Court, should
have the right of being tried by a jury of his own caste,
and that the right of sitting upon juries, in all such cases,
should extend, subject to certain qualifications, to every
half-caste, and to every other description of native upon
the island, to whatever caste 01' religious persuasion he
might belong.


The following part of the account is extracted from Sir
Alexander Johnston's letter 011 the subject to the Board
of Control:-


"Every native of Ceylon, provided he be a freeman,
has attained the age of twenty-one, and is a permanent
resident in the island, is qualified to sit on juries. The
fiscal 01' sheriff of the province, as soon as a criminal




582 CEYLON.
sessions is fixed for his province, summons a considerable
number of jurymen of each caste, taking particular care
that no juryman is summoned out of his turn, or so as to
interfere with any agricultural 01' maqufacturing pursuits in
which he may be occupied, 01' with any religious ceremony
at which his caste may require his attendance. On the
first day of the sessions the names of all the jurymen who
are summoned are called over,and the jurymen, as well
as the magistrates and police officers, attend in court and
hear the charge delivered by the judge. The prisoners
are tben arraigned; every prisoner has a rigbt to be tried
by thirteen jurymen of his own caste, unless sorne reason
why the prisoner should not be tried by jurymen of his
own caste can be urged to the satisfaction of thc court by
the advocate-fiscal, who, in Ceylon, holds an office very
nearly similar to that held in Scotland by the Lord-Advo-
cate, 01' unless the prisoner himself, from believing people
of his own caste to be prejudiced against him, shouldapply
to be tried either by thirteen jurymen of another caste, 01"
by a jury composed of half-castes 01' Europeans, As soon
as it is decided of what caste the jury is to be composed,
the registrar of the court puts into an urn, which stands in
a conspicuous part of the court, a very considerable num-
ber of the names of jurymen of that caste out of which the
j ury is to be formed; he continues to draw the names out
of thc urn, the prisoner having a right to object to five
peremptorily and to any number for cause, until he has
drawn the names of thirteen jurymen who have not been
objected to; these thirteen juryrnen are then sworn, ac-
cording to the form of their respective religions, to decide
upon the case according to the evidence and wíthout par-
tiality, The advocate-fiscal then opens the case for the
prosecution (through an interpreter if necessary) to the
judge, and proceeds to can all the witnesses for the pro-
secution, whose evidence is taken down (through an in-
terpreter if necessary) in the hearing of the jury, by the
judge, the jury having a right to examine and the prisoner
to cross-examine any of the aboye witnesses. When the
case for the prosecution is closed, the prisoner states what
he has to urge in his defence, and calls his witnesses, the
jury having a right to examine, and the prosecutor to
cross-examine them, their evidence being taken down by
the judge; thc prosecutor is seldom 01' ever, except in
very particular cases, allowed to reply 01' call any wit-
nesses in repIy."




( 583 )


MAURITIUS.


-


MAURITIUS is a small island in the Indian Ocean, lying
between 19°56' and 20° 30' south latitude ami 57° 17' and
57° 47' east longitude, It is nearly clliptical in form, and
measures about 12 leagues from north to south, and 10
from east to west. Its circumference is between 60 and
70 miles. The little island of Bourbon líes to the south-
west of it. The heat of the c1imate is vel'y great upon
the coast, but the higher parts of the island are more
temperate. The soil produces in great luxuriance every
kind of tropical vegetable. Sugar, coffee, spices, and
ebony are the principal exports; rice, salt provisions, and
manufacturad articles, the chief importe. The population,
now estimated at aboye 80,000, is stated to have qua-
drupled in the last ~() years. Plantations are scattered
all over the country, and the only town is Port Louis,
situated at the bottom of the harbour in a valley enclosed
by loftyand rugged declivities. It was formerly built for
the most part of wood, but the greater portion having
been accidentally destroyed by firc in 1816, it has since
been rebuilt in a better manner.


HISTORY AND CONSTITUTlON.


The island was discovered by the Portuguese, under
one of the family of Mascarenhas, early in the sixteenth
century, They called it at first IIha do Cerné. The
Dutch however first planted it, and they gave it the name
it now bears from Prince Maurice of N assau. Their set-
tlement was formed on the south-eastern shore of the
island before 1639, and seems to have been abandoned in
1644" and resumed in 1650, but the settlers were finally
compelled to abandon it in 1710. The French, who had
possessed themselves ofthe neighbouring island of Masca-
renhas, which they named the island of Bourbon, took pos-
session of the Mauritius as soon as the Dutch had quitted it,




584 MAURITIUS.
In 1723 a Governor and Council were appointed. In 1734.
Mahé de la Bourdonnais was appointed Governor, and in
1766 he was sueeeeded by M. Poivre. Both Governors
materialIy benefited the colony, the first by seleeting
a new port on the north-western coast of the island, as the
situation for the capital, on account of its being on the
leeward side of the island, and allowing the free entrance
and egress of ships, which, though they could easily enter,
could not readily quit the old port chosen by the Dutch;
and the last, by procuring at great pains and expense
plants of cloves and nutmegs from the islands of the
Eastern Archipelago, notwithstanding the positive direc-
tions given by the Dutch government to root them up and
destroy them. The island was captured in December,
1810, by a force under General Abercrombie, and was
ceded to Great Britain at the peace of 18B. It is now
put upon the footing of our other sugar colonies.c-Ber-
nardin du Sto Pierre, Voyage de l'Isle de France, and
Eney. Metrop.: 3 & 4 Wm. 4, c. 56, s. 9.


This island is governed, like our other crown eolonies,
by Orders in Council, and the executive government is
intrusted in them to a Governor and Council. The Go-
vernor receives a salary of ~8000 ayear. The President
and Members of the Council receive no salary in that
capacity. The salary of Colonial Secretary was 1:3000
ayear. There is an establishment for mortgages and
registrations. The salary of the Chief Commissary of Po-
liee is ~lOOO ayear. The Chief Judge, who is also Com-
missary of Justice and Judge of Viee-Admiralty, receives
a salary oí ~3500 ayear. The Attorney-GeneraJ, who was
also standing English Counsel,reeeived about .t'850 ayear;
and as a -Iudge of the Court of Appeal the further sum
of 1'560. The Vice-President of the Court of Appeal
reccived .t'840 ayear, and four Judges of the Court
~560 each, The President of the Court of First Instanee
received a salary of 1:700 a year, and his fees were esti-
mated at ~200. The two Assistant Judges 1'560 each,
and the senior of them received fees to the amount of
about 1'60. The Procureur-General received ~840 ayear
in that character, and a further sum of 1'360 as King's
Attorney to the Land Court. The first and second sub-
stitutes of the Procureur-General received ~560 each,
The Government Advocate, who was also King's Advo-
cate in the Vice-Admiralty Court, received cf480 ayear,




MAURITIUS. 585
salary and fees amounting to about .1:500. The Curator
of intestates' and vacant estates had no salary, but re-
ceived fees arising on a per centage on sums paid into the
office, and which were calculated to amount to about
.1:880 ayear.


The acting Government Agent of the Seychelles re-
ceived .t'600 ayear, and the Chief Justice of Peace 1'240
ayear. The two Assistant Justices had no salary, but
received fees amounting to about .1:40 ayear each.-:-
4th Rep. Como of Enquiry Col. Rev. and Expen. (Mauri-
tius,) House of Commons Papcrs, Feb.1831, No. 194.


Some of these offices appear by the Order in Council
to have been abolished.-See post.


LAws.(I)
The island capitulated on the 3d of December, 1810.
By the 7th article of the capitulation it was stipulated,


that property of the inhabitants should be rcspected;
and by the 8th, that the inhabitants should preserve their
rcligion, their laws and customs.


Bya proclamation dated on the 5th December, 1810,
it was dec1ared that the rules hitherto observed for the
administration of civil justice and of police should be
preserved, and that the laws and usages in force up to
that day should also be continued.


The inhabitants were promised all the advantages of
commerce enjoyed by others of His Majesty's subjects.
As to the administration of the different branches of go-
vernment, it was dec1ared that a new proclamation would
announce the method in which it should be carried on,


The proc1amation, dated on the 28th December, 1810,
(afterwards confirmed in substance by another of the date
of January, 1814,) was accordingIy pubIished. By the
1st articIe of that proclamation, all the ecc1esiastical esta-
blishments and the religious functionaries were continued
under the same laws as heretofore.


By the 2d article, all the establishments, as well judi-
cial as those of police, were to be preserved and con-
tinued durante bene placito under the EngIish govern-
ment, upon the same footing and subject to the same


(1) See ante, 3 to 16, on tbe general topic, how far the colonies are subject
to the law of the motber country,




586 MAURITIUS.
regulations as those which existed at the time of the capi-
tulation, under the following modificatioos :-that aH
judgments should be given in the name of His Majesty
the King oí Great Britain and Ireland; that aU decrees
of the Court of Appeal established in the island, from
which an appeal might formerly have been made 'to the
Superior Courts in France, should be, until otherwise
ordered, the subject of appeal to the Governor of the
islands, who, after having transmitted them to the Judicial
Assessor and Magistrate of the colony for his advice and
opioion thereon, should give his own decision. An appeal
was to be aIlowed to the King in Council in aU matters
where the subject in dispute exceeded the value of 4000
piastres, (~)


Courts.
At the time of the conquest by Great Britain the co-


lony was governed by four out of the five codes which
had been promulgated by N apoleon, (3) Some of the
courts however had been instituted before or during the
existence of the French Republic.


By a decree of the Council of State of the 3d of Ger-
minal in the year 11, the Tribunal of othe First Instance,
and the Tribunal of Appeal were established. 'I'he Tri-
bunal Terrier was directed to be composed of the Cap-
tain-General, Prefect, the Commissary of Justice, or of
four members of the Tribunal of Appeal, who should be
chosen by the Captain-General. By a subsequent ordi-
nance it was decIared, that the tribunals of this colony
should be composed of the Tribunal of Appeal and the
Civil Tribunal. The Tribunal of Appeal was to consist
of a president, a vice-president, three judges, four super-
numerarles, a commissary of the government, a substitute,
exercising in case of need the functions of the commissary,
and a secretary.


The Civil Tribunal was to consist of one judge, of one
substitute, of a commissary of the government, and a se-
cretary.


The Civil Tribunal was to have cognizance over all
affairs civil and criminal, matters of commerce, admiralty,
and police,


The Tribunal of Appeal was to decide in the last resort


(2) The sum is now settled by the charter at DOOO sterling,
(3) See ante, 23.




MAURITIUS. 587
upon all judgments in the Court oí FirstInstanee in the
following manner:-In civil matters the tribunal was to
be eomposed of five judges, and of seven in criminal
matters. When all civil jurisdiction was taken away from
religious persons, a decree was passed by the Captain-
General Decaen, declaring that it was indispensable to
establish a civil commissary in each district of the colony,
to prepare, receive and preserve public acts. Such an
officer was accordingly appointed, and charged with the
keeping .of the registers oí births, marriages and deaths,
He was to be appointed by the Captain-General, upon
the recommendation oí the Colonial Prefect and- of the
Commissary oí Justice.


The Court of Appeal was modified from time to time
by proclamations of the Governor. It is now finally regu-
lated by the Order in Council.


Cedes cifLasos.
By a decree dated on the 25th of Vendemiaire in the


year 14, the Code Civil was promulgated in this colony,
and again, with the necessary changes required by the
colony, wasdeclared to be in force upon the 21st April,
1808. 'I'he Code de Commerce (with a few alterations)
was promulgated upon the 14th July, 1809. The Code
Noir had becn in force since the month of December,
17~3. The Code Penal established in the colony, is
that which was agreed to by the Colonial Assembly on
the 7th August, 1793, and confirmed by a proclamation
of Governor Farquhar as to all the population, free or
slaves, on the 6th November, 1816. It was provided,
however, that this should not affect the regulation of
slaves by the provisions of the Code Noir.


The Colonial Assembly, upon the 1st of August, 1793,
promulgated acode upon municipal and correctionalpo-
liceo .


The code oí Civil Procedure was adopted from France
on the 20th July, 1808, with a few alterations rendered
necessary by the circumstances of the colony.


Colonial Council.
This body was ereated by a decree of the 29th Septem-


ber, 1810. The decree recited that the colony was bound




588 MAURITlUS.
to contribute its assistance to the expense of providing
for its own safety, and in order to raise the revenues neces-
sary for this purpose a council was created, consisting of
eleven persons, to be chosen from among the principal in-
habitants and traders of the different parts of the island,
three from tbe Port Napoleon, and one from each of the
other dístricta, The members of the Council were to be
narned by the Captain-General, on the presentation of the
Colonial Prefect and the Commissary of J ustice, from
a list of nine candidates elected for the district of Port
Napoleon, and three for each of the other districts,
Any vacancy in the Council was to be filled up by the
first of the candidates whose names remained upon the
list of election. Electoral Chambers were to be formed
for the election of these candidates for the Council, and
members of these Chambers were to be named by the
Captain-General, upon the presentation of the Colonial
Prefect and the Commissary of Justice.


Council of the Commune.
By a proclamation of Governor Farquhar, dated on the


8th Septernber, 1817, it was ordered, that there should
be formed in the town of Port Louis a Council of the
Commune composed for tbe town of twelve notable inha-
bitants, and for each other quarter of the island of three
proprietary inhabitants. AH these inhabitants were to be
at least 30 years of age, unless they were boro in tbe ca-
Iony, whcn they might be appointed at 27 years of age.
They must have resided 10 years in the colony, and be
possessed of an annual income of 5000 piastres in the
country, 01' 3000 in the town of Port Louis, The mem-
bers who were to compose the Councils of Communes
were to be nominated, subject to the approbation of His
Majesty's ministers, by his Excellency the Governor, from
lists containing three times the number of persons to be
so nominated. The members were to continue in office
for five years, when a new nomination was to take place
from new lists, Any vacancy happening during the five
years was to be filled up from the first listo The Council
were to elect a president, a vice-president, and a secre-
tary, and might proceed to business when the president
01' vice-president and six otber members were presento
These councils were to have the power of discussing




MAURITIUS. 589
questions transmitted to them by the Governor upon the
internal administration of the colony, and of discussing
matters relating to trade and commerce and public edu-
catiol1, and roads and canals, and manufactures and agri-
culture, and reporting thereon to the Govemor, These
councils were however never to forget, that their delibera-
tions upon subjects foreign to those indicated to them by
the Governor, would expose those who joined in them to
personal responsibility.


By a subsequent proclamation of the 26th September,
1817, the numbcr ofmembers of Council for the town of
Port Louis was increased from 12 to 15.


By a despatch of the Earl of Bathurst, dated on the
31st August, 1820, the Governor was directed, as appears
by his proclamation of the 29th January, 1821, to sup-
press these councils of the commune, and they were sup-
pressed accordingly.


Potoers oj'the Gooernor.
By a proclamation dated on the 22d of January, 1814,


Governor Farquhar declared the surprise and indignation
with which he had heard of a judgment of the Court of
Appeal in the island of Bourbon. The proclamation
stated, that several persons therein named had been ac-
cused before the Court of First Instance of having COIl-
travened the laws against the slave trade , that they had
pleaded that the said laws were not in force in the island
of Bourbon, as they had not been lega11y published in
the tribunaIs there; that the court admitting that they
had been promulgated in the official gazette of the govern-
ment, had nevertheless laboured to adopt an opinion so fa-
vourable to a11 the violators of the laws of His Majesty's
empire, and had declared that such official promulgation


-by the government did not affect the isle of Bourbon, since
each island had its separate tribunals; it had therefore
desired the accused to be acquitted. The proclamation
went on to state, that the Procureur-General had ap-
pealed from this judgment to the Court of Appeal of
Criminal Justice in the island, and that by that court the
judgment of the Court of First Instance had been con-
firmed; that bis Excellency consídered that the magis-
trates who had conflrmed the before-mentioned judgment
had víolated their functions in a serious and most culpable.




590 MAURITIUS.
manner, since they had permitted themselves to establish
a jurisdiction contrary to the rights of nations and to the
British laws, so that an odious and justIy proscribed
traffic was treated as if still permitted at the isle of Bour-
bon; that his Excellency was of opinion that these laws
were in force in the colonies from the moment they came
into possession of His Britannic Majesty, and that his
Excellency knew how to maintain these laws, and to
make them respected; and for this double purpose he
ordained, first, that all the judges of the tribunals of the
isle of Bourbon who had given and confirmed the judg-
ment aforesaid, should be suspended from their functions
until it pleased His Royal Highness the Prince Regent to
make such orders as he might think fit upon the report
which wotMI. be forwarded to hOO by his Excellency
the Governor j and secondly, that those members of the
two tribunals who had acted in this affair, should not be
capable of being appointed to any publie employment
until the pleasure of His Royal Highness should be
known.Ié)


CourtJor the Trial of Piracies,
This court was established by an instruction issued to


Govemor Farquhar, dated February 1, 1814. The in-
struction recited the act of the 46 Geo, 3, intituled, "An
Act for the Summary Adjudication of Crimes eommitted
in distant Countries and upon the Sea," and also an aet of
the ~8th Hen. 8, intituled "An Aet eoneerning Piraeies,"
and then appointed, as commissioners for the purpose of
earrying into effeet these two aets, three persons, of
whom the Governor for the time being, the Judge of the
Court of Viee-Admiralty, 01' his :deputy legally appointed,
the Chief Justice and Commissary of Justiee, 01' -the
Secretary of the colony, should always be one, and who
were to examine, withgood and loyal men of the isle of
France, in such manner asthey thought fit, into the coro-
mission of all such crimes.


(4) A statement reacbed tbis coun-
try just as this sheet was going to
press, that some of the judges of the
colony had been suspended from the
exereise of their funetions, on the
ground that they were the holders of
slaves, eontrary to the terms of the
Order in Council, As that order


merely declares tbat the persons there-
in speeified shall not be the holdersof
slaves, but does not provide for its
own enforcement, this sus'pension of
the funetions of the offending judges
must have taken place under the au-
thority vested in the Governor by his
commission or instructíons,




MAURITIUS. 591


Curator of Vacant Possessions.
This officer was established by a decree of 13th Bru-


maire in the year 12, and his duties were settled by that
decree. Sorne changcs were madc by a subsequent de-
cree of the 10th Messidor in the year 12, further altera-
tions by a decree of the 22d of Nivose in the year 13,
and again by decrees of the 18th July and thc 16th Sep ...
ternber, 1809, when vacant possessions became subject to
the Code Napoleon.


Bya proclamation dated on the 4th January, 1811, the
office of Curator of Vacant Possessions was intrusted to
MI'. Shaw, then the Judicial Assessor. By another pro-
clarnation dated on the 16th January, 1812, the forma-
lities applicable to Frenchmen were equalIy extended to
the succession of Englishmen 01' foreigners .who should
die on the island intestate. The funds arising from such
successions were directed to be paíd into the public trea-
sury, to be at the disposal of the government.


Burials.
The au thority to bury a eorpse must be given by the


civil commissary, upon a declaration oí the death made
by two witnesses, the nearest relatives, 01' neighbours of
the deceased.


Prosecution qf Crimes and Offences.
Bya decree of the 25th of Messidor, in the year 12,


the Commissary of Government in the Tribunal of First
Instance, in each of the islands, was charged with the pro-
secution of all offences in the said islands.


Dioorce.
The French law of divorce has been adopted In tbe


Mauritius,
Reglstration ofDeeds.


.Almost aH civil acts must be registered, such as wills
and deeds, both of which must be registered within three
months after their date, and such instruments cannat be




592 MAURITIUS.
put in force without being duly registered. Neglecting
to register these instruments within the appointed time
subjects the party to the payment of double fees for re-
gistration.


Arrest,
By a decree of 23d March, 1808, it was ordered that


any foreigners not domiciled in France, might be arrested
by a Frenchman upon a judgment given against such
foreigner, He might also be provisionally arrested at the
discretion of the judge, before the judgment, unless he
gave such security as the judge might think sufficient.


lHortgages.


These are of course expressly governed by the Code
Napoleon, but after the promuIgation of that code in the
island of Mauritius, a question was raised whether it was
necessary to renew the registration of these mortgages at
the expiration of every ten years. This question was sub-
mitted to the French government, and by a decree of the
Council of State, dated on the 15th of December, 1807,
and confirmed by the Emperor on the 22d January, 1808,
it was decided that renewed registration was necessary,
and that the question was resolved by the article 2154 of
the Code N apoleon, That article is in the following
terms,-" The registration preserves the mortgage and
the privileges connected therewith during the period of
ten years from the date of the registration; its effect
ceases if this registration is not renewed before the expira-
tion of that term."


THE SEYCHELLES.


By an ordinance dated 23d September, 1806, a tribunal
for the maintenance of the public peace was established for
the islands of the Seychelles. This tribunal was to be
composed of one judge and a secretary, (4) and there were
to be two supplementary judges, who, in his absence, from
illness 01' other cause, were to supply his place. The
Justice of the Peace was to decide alone and without


(4) See this court IlOW provided for by the recent Order in Councll,




MAURITIUS. 593
appeal on a11 causes purely personal and affeeting personal
property to the value of ZOO franes 01' 40 piastres, and
subject to appeal to the amount of 600 francs or 125
piastres. In the latter case bis judgments migbt be exe-
cuted on the party giving security for restitution. He
might decide alone, and without appeal, to the amount of
ZOO franca, and subjeet to appeal to any amount whatever
in the following cases :-Complaints of injury done by
animals to fields, trees, 01' harvests, Complaints of tres-
passes upon property, Tenants' repairs to houses held
by them. Indemnity claimed by tenants for interruption
of enjoyment when tbe right to indemnity was not con-
tested. The payment of the wages of workmen, and the
performance of engagements relating thereto. Aetions for
verbal insults and breaehes of the peaee, at least when the
parties are not tried criminally for the same.


Byan ordinance dated 12th March, 1810, sworn va-
luers were to be appointed in the case of the sale of im-
movable property by order of the eourt.


A proclamation issued by Governor Farquhar, on tbe
18th of March, 1812, eonfirmed these two ordinances ;
another dated on the 3d September, 1817, recited them,
and directed that the Justice ofthe Peace appointed under
these ordinanees, and the civil agent of the government
and his deputy, uniting to themselves three notable inha-
bitants nominated by the civil agent, should present to
the government as speedily as possible, for the approba-
tion of the government, a project for a Couneil of the
Commune at the Seyehelles, sueh as was necessary for the
place; but this was not done, as the Councils of the Com-
mune were speedily afterwards suppressed.-See ante,
587. .


Woods and Foreste.
A special tribunal to protect the rigbts of the crown in


these matters was continuad by proclamation of tbe 1st
February,1813, aecording to the form in which it had
been established in 1766.


QQ




MAURITlUs-CHARTER OF JUSTICE.


At the Court at Sto James's, the 13th of April, 1831;
Present, the King's Most Excellent Majesty in Counci\.


WHEREAS it is necessary to make provision for the better administration
of justíce in His Majesty's island of Mauritius and íts dependencies,
His Majesty doth therefore, by and with the advice of his Privy Coun-
cil, order, and it is hereby ordered, tbat His Majesty's Supreme Court
ofCivil and Criminal Justice witbin the said colony, called the Cour
d'Appel, sball benceforth be bolden by and before three judges only, and
no more; and that tbe chief or senior judge of the said court shall hence-
forth bear tbe title of Chief Judge and Fírst President; and that the
second of the said judges shall henceforth be called and bear the title of
Vice-President ; and that the third of the said judges shall henceforth be
called and bear the title of Assistant-Judge of the said court: And it is
further ordered, that lIis Majesty's court in tbe said island, called the
Tribunal de Premiere Instance, shall henceforth be holden by and
before, and shall consist of one judge, to be called the President of the
said tribunal, and one other judge, to be called a Judge Suppléant .
And it is further ordered, that in case any judge of either of the said
ccurts should, by reason of any such lawful recirsation as hereinafter
mentioned, or by sickness, absence, suspension, resignation,· 01' any
other cause, be unable to perform the duties of such his office, it shall
be lawful for the Governor of the said colony to complete the number
ofjudges of such court, by appointing, in His Majesty's name and on
his behalf, sorne proper person to act as and be a judge of such court
during such vacancy, or until His Majesty's pleasure shall be known:
And it is hereby further ordered, that if in any criminal case the law
which is now or hereafter shall be in force within the said island and
its dependencies, shall require the presence in either of the said
tribunals of a greater number of judges than are hereinbefore men-
tioned, then and in every such case it shall be lawful for the Governor
of the said colony, in His Majesty's name and on his behalf, to appoint
such an additional number of judges for any such special occasion as
may be necessary to complete the whole number of judges so required
by law; but all appointments which may be so made shall endure so
long only as may be necessary to provide for any such emergency, and
shall be renewed. from time time as occasion may require: And
whereas on the 17th day of February, 1830, the Governor of the said
islaud of Mauritius, with the advice of the Council of Government
thareof, made an ordinance, bearing date on the day and year last afore-




MAURITIUS-CHARTER OF JUSTrCE. 595
said, intituled "An Ordinance for the establishing of a Court composed
of his ExceUency, to judge certain prises á partie et recusations,"
directed against the Court of Appeal " in this colony:" Now, it is
furjher ordered that the said ordinance shall be, and the same is hereby
confirmed and allowed, and that any recusation which may hereafter
be made of any judge of either of the said tribunals, shall be heard,
tried, adjudged, and determined in the manner provided by the said
ordinance, and not otherwise: And it is hereby further ordered, that
all and every the powers, authorities, and jurisdictions heretofore vested
in the judges ofthe said tribunals respectively, 01' in a majority of'them,
shall continue and be vested in the judges hereinbefore mentioned 01' in
the majority of them: Provided nevertheless, and it is further ordered,
that in all cases in which the Court of Vice-Admiralty of the said
colony hath jurisdiction, whether by virtue of any Act of Parliament 01'
by virtue of the commission of the judge of tbe said court, such jurís-
diction shall be exclusive, and that it shall not be competent for the
said Cour d'Appel 01' for the said Tribunal de Premiere Instance to
hear, decide, 01' take cognizance of any such case; and tbat if, in any
suit 01' aetion 01' other proceeding depending in the said Cour d' Appel
01' in the said Tribunal de Premiere Instance, it shall be made to appear
that the question arising in any such action, suit, 01' proceeding is within
the jurisdiction 01' competency of the said Court of Vice-Admiralty,
tben and in every such case the said Tribunal de Premiere Instance 01'
the said Cour d'Appel, as the case may be, shall declare itself i,ncompe-
tent: And it is further ordered that the office of Grand Juge, Goinmis-
saire de Justice of the said island of Mauritius, is and shall be abolished :
And it is further ordered, that in all civil cases depending before tbe
said Cour d'Appel 01' the said Tribunal de Premíere Instance, the
Procureur-General of the said island, 01' his substitutes, are and shall be
relievcd from the duty heretofore incumbent on them of making their
conclusions for the assistance of the said tribunals: And it is further
erdered that no Judge of the said Cour d' Appel, nor the Judge of the
said Tribunal de Premiere Instance, nor the suppléant of the said
tribunal, nor the Procureur-General of the said island, nor tbe Advo-
cate-General thereof, nor the Judge ofthe Court ofVice-Admiralty, nor
any surrogate of such judge, shall be the owner of any slave, nor be the
proprietor of 01' have any share 01' interest in any land cultivated by the
labour of slaves, either directly 01' by any person 01' persons as a
trustee 01' trustees for him; and each of the said several officers is
hereby declared incompetent to be or act as tbe manager, overseer,
agent, 01' attorney of, for, 01' upon any plantation 01' estate within the
said island 01' its dependencies; Provided nevertheless, that nothing
herein contained shall prevent any such officer as aforesaid fromhiring


QQ2




!J96 MAURITIUS-CHARTER OF JUSTICE.
for and employing in the domestic service of himself, or any members
of his íamily, any number of slaves, if it shall be first made to appear
by such officer, to the satisfaction of the Governor of the said island,
that it is not in his power to hire free persons to perform such domestic
services: And it is further ordered, that there shal! be in the town of
Port Louis in the said island, a Petit Court, to be holden by a single
judge, to be called the Juge de Paix of the said town, for the deeision
of all civil causes of small amount arising within the said island, and
for the trialof all crimes and offences of a low degree committed
therein, and that from the judgments, sentences, and orders of the said
Petit Court, no appeal shall líe to any other tribunal or judge in the
said island or elsewhere; and that there shall also be in any one or
more of the dependencies of the Mauritius, which the Governor of the
said island, with the advice of the council of government thereof, may
select, a Petit Court, to be holden in like manner by a single judge, to
be called the Juge de Paix of such dependency, for the decision of al!
civil cases of small amount arising therein, and for the trial of all crimes
and offences of a low degree which may be there committed; and that
the Governor of Mauritius, with the advice and consent ofthe council
of government of the said island, shaJl, by any ordinances to be from
time to time for that purpose made, define and limit the extent of the
jurisdiction, both civil and criminal, of any such Petit Court, and fix
and regulare the forms of proceeding, the rules of practica, and the
nature of the process to be observed therein respectively: And it is
hereby further ordered, that it shall and may be lawful for any person
or persons, being a party or parties to any civil suit 01' action depending
in the said Cour d'Appel of the said island of Mauritius, to appeal to
His Majesty in Council, his heirs and successors, or his or their Privy
Council, against any final judgment, sentence, or decree of the said
court, or against any rule or order made in any snch civil suit or action
having the effect of a final or definitiva sentence, and which appeals
shall be made subject to the rules, regulations, and limitations following;
that is to say, in case any such judgment, decree, order, or sentence
shall be given or pronounced for or in respect of any sum or matter at
issue above the amount or value of .flOOO sterling, or in case such
judgment, decree, order, or sentence shall involve, directly or indirectly,
any claim, demand, or question to 01' respecting property, or any civil
right, amounting to 01' of the value of .flOOO sterling, or in case the
same sha11 affect the right or alleged right of any person to freedom, the
person or persons feeling aggrievcd by any such judgment, decree,
order, or sentence of the said COUI' d'Appel, may within fourteen days
next after the same shall have been made, pronouncsd, or givcn, apply
to tila said Cour d'Appel by petition, for leave to appeal therefrom to




MAURITIUS--cItARTER OF rusrtcs. 59'1
IIis Majesty, his heirs, aud successors, 01' his 01' their Privy Council;
and in case such lcavo lo appeal shall be prayed by the parly 01' parties
who is 01' are elireeted lo pay any sum ofmoney, 01' perform any duty,
the said Cour d'Appel shall and is hereby empowered either to direct
that the judgment, deeree, order, 01' sentence .appealed from shall be
carried into execution, 01' to direct that the execution thereof shall be
suspended pending the said appeal, as to the said court may in each
case appear the most consislent with real and substantial justice; and
in case the said Cour d'Appel shall direct such judgment, decree,
order, 01' sentence to be carried into execution, the person 01' persons in
whose favour the samo shaU be given shaU before the execution thereof
enter into good and sufficient security, to be approved by the said court,
for the due performance of such judgment 01' order as Bis Majesty, his
heirs, and successors, shaU think lit to make thereupon; 01' in case the
said Cour d'Appel shal! direct the execution of any such judgment,
decree, order, 01' sentenee to be suspended pending any such appeal,
the person 01' persons against whom the same shall have been given
shall in like manner, and before any order for the suspension of any
such execution is made, enter into good and suflicient security, to be
approved by the said court, for the due performance of such-judgment
or order as Bis Majesty, his heirs, and successors shall think fit to
make thereupon: And it is further ordered, that in all cases security
shall also be given by the party or parties appellant, lo tbe satisfaction
of the said court, for the prosecution of the appeal, and for the pay-
ment of al! such costs as may be awarded by Bis Majesty, his beirs,
and successors, to the party 01' parties respondent; and if such last-
mentioned security shall be entered into within three montbs from the
date of such petition for leave to appeal, then, and not otherwise, tbe said
Cour eI'Appel shall allow the appeal, and the party or parties appellant
shall be at liberty lo prefer and prosecute his, her, 01' tbeir appeal to
His Majesty, his 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 his plantations and colonies: Provided
nevertheless, and it is further declared and ordered, that notbing herein
contained shall extend or be construed to extend to take away, diminish,
01' derogate from the undoubted power and authority of Bis Majesty,
his heirs, and successors, in his 01' their Privy Council, and upon the
humble petition at any time of any person 01' persons aggrieved by any
judgment 01' determination of the said Cour d'Appel, to admit, his, her,
01' their appeal therefrom upon such other terms, and upon and subject
to such other limitations, restrictions, and regulations, as Bis Majesty,
his heirs, and successors, shall in any such special case think 6t to
prescribe: And it is further ordered, that in all cases of appeal aUowed




598 MAURITIUS-CHARTER OF JUSTICE.
by the said Cour d'Appel, or by His Majesty, his heirs, and sueeessors,
the said eourt shall certify and transmit to His Majesty, his heirs, and
successors, in his or their Pri vy Couneil, a true and exact copy of all
proceedings, judgments, deerees, and orders had or made, and of all
evidenee received or given in such causes só appealed, so far as thé
samehave relation to the matter oí appeal; such copies to be certified
under thé seal of the saidcourt: And it is further ordered, tbat the said
Cóur d' Appel shall in all cases of appeal to His Majesty, his heirs, and
successors, conform to and execute such judgments and orders as His
1I,raje~ty, his heirs, and successors shall think fit to maketberein, in such
and the samemanner as any judgment, decree, or order of the said
Cour d'Appel could or might bave been executed. And the Right Ho-
nourable the Lord Viscount Goderich, one of His Majesty's principal
Secretaries of State, is to givethe necessarydirections berein accordingly,




( 599 )


THE AUSTRALIAN COLüNIES.


THE name of AUSTRALIA has of late years been affixed
to those two islands in the southern hemisphere, sepa-
rated by Bass's Straits and the islands circumjacent,
called by the early Dutch navigators NEW HOLLAND.
The change of name was introduced by the celebrated
French geographer, Malte Brun, who, in his division of
the globe, denominated these islands Austral-Asia, which
has since, for the sake of brevity, been called Australia.


Australia, properlyspeaking, consists ofmany islands, but
one is so much larger than every other island on the face
of the globe, that it is classed as a continent, in order to
convey to the mind a just idea of its magnitude. Stretch-
ing from the 115th to the 153d degree of east longitude,
and from the 10th to the 37th of south latitude, it aver-
ages 2700 miles in length, 1800 in breadth, and balanced,
as it were, upon the tropic of that hemisphere in which it
is situated, it receives the fiery heat of the equator at
one extremity, while it enjoys the refreshing coolness of
the temperate zone at the other. Van Diemen's Land is
the second island, but is very inferior in extent to the first,
By the colonists the larger island is generally called Aus-
tralia, and the smaller one Van Diemen's Land, or 'I'as-
mania, On the eastern coast of the former is the colony
known as New South Wales, and on the western coast is
the Swan River Settlement, commonly called Western
Australia. The settlements at Van Diemen's Land occupY
each of the four coasts of that island •


...." The chapters upon the Aus-
tralian settlements were contributed
by my friend, Henry W. Parser, Esq.


of Gray's Inn, Barrister at Law,5;the
author of a workupon Van Diemen's
Land.-C.C.




( 600 )


NEW SOUTH WALES.


-


Tms colony, whieh in the commissions appointing thc
Governors is called His Majesty's Territory of New
South WaIes, is situated on the eastern eoast. of New
Holland. An Order of Couneil dated the 6th December,
1786, and the King's warrant, dated 3d April, 1787, for
Ietters-patent appointing a Vice-Admiral and a Juclge of
the Vice-Admiralty Court for the new settlement, declare
its limits to extend "from the northern cape 01' extremity
of the coast called Cape Yark, in the latitude 10° 37'
south, to the South Cape, the southern extremity of the
coast in thc Iatitude uf 4.30 39' south, and inland to the
westward as far as 1350 east Iongitude, reckoning from
the meridian of Greenwich, including all the islands adja-
cent in the Pacific Ocean within the latitudes aforesaid."
At that period it was not known that Van Diemen's Land
was not part of the main island, as the channel separating
it was not discovered until the-year 1797. An Order in
Council, dated ]4.th June, 1825, declared Van Diemcn's
Land to be independent of the colony at New South
'Vales, thereby limiting the southern boundary of thc co-
Iony to the shores of Bass's Straíts. Norfolk Island,(I) on
whieh a settlement was formed by Lieut. King, shortly
after the coIony at Sydney Cave was eetablished, is one
of the islands within the limits (2) of the boundary marked
out in the order of council,


(1) This settlernent was abandonad
some years since, but in 1825 the
island was again oecupied, and there
is now formed there an establishment
for the reception of convicts of the
first class-c-rnalefactors, whose crimes
denote them to be hardened offenders.
-Parker's Van Diemen's Land, p.
40.


(2) One of the judges of the Su-
preme Court, when the prisoners de-
tained in custody on charges of havo


ing committed offenccs within the
island amount to any considerable
number, proceeds from Sydney, ac-
companied by military or naval ofli-
eers for a jury, and a counsel ap.
poinled by the Governor to defend the
prisoners, and hotels a court of oyer
and terminer al this island, This
course has been adoptcd, as it was
found that convicts frequently como
mitted offenees merely for the sake of
going lo Sydney lo be tried,




NEW SOUTH WALES. 601
The located 01' scttled parts of the colony are divided


into 19 districts, (3) and contain several towns, the chief
of which are Sydney, the seat of the colonial government,
and now a free warehousing port, Paramatta, Windsor,
N ewcastle, Liverpool, Maitland, &c. The generaIity of
the land is not accounted fit for the plough, hut it pro-
duces herbage upon which sheep thrive, this and the fine
climate has tended to produce those superior flceces
which now compete in the English market with the far-
famed Saxon and Spanish clips.


HISTORY AND CONsTlTUTION.


New Holland is said to have been discovered by the
Spanish Navigator, Don Pedro Fernando de Quiros, in
1609, but there is much rcason to bclicvc that thc land
which he discovered was one of the small islands to the
north of New Holland. In 1616 it was visited by Theo-
dorio Hertoge, who called that part on which he Ianded
Eendraaght Land, and in 1618 Zeachen saw another
part of the coast, which he named Arnheim Diemen.
Jan Van EdeIs in 1619 gave his own name to a portion of
the southern coast. In 1687, and again in 1699, Dampier
surveyed the western shores of the isIand, and the Dutch
navigator Carpenter shortly afterwards surveyed the gulf,
which he named Carpentaria; but from that time, untiI
Captain Cook in 1770 expIored the eastern coast, little 01'
nothing was known of this extensive country.


The description Captain Cook, 00 his return to Eng-
Iand, gave of Botany Bay, (so called from the number of
new plants discovered 00 the shores by MI'. afterwards
Sir Joseph Bankes, and Dr. SoIander,) induced the go-
vernment to fix upon it as a place to which convicts
should be transported; and His Majesty by two separate
Orders in Council, dated 6th December, 1786, declarad
and appoirrted the place to which convicts should bc
transported, to be the eastern coast of N ew South WaIes,
01' sorne one 01' other of the isIands adjacent within the
Iimits before described. The ships appointed to proceed


(3) These 19 districts or counties
are, Cumberland, Camden, Sto Vin-
cent, Gloucester, Durharn, Hunter,
Cook, Westmoreland, Argyle, Mur-


ray, King, Georgiana, Bathurst, Rox-
burgh, Phíllip, Brisbane, Bligh, Mac.
quarie, and Wellington.




602 NEW SOUTH WALES.
to the eastern coast were Hís Majesty's ship Sirius, and
His Majesty's brig Supply, with seven transports and
three store-ships, having on board, besides the officers of
the new settIement, soldiers and marines, 768 maleo con-
victs,(4) 222 female convicts, and 27 children. The ex-
pedition sailed from the Mother-bank on Thursday the
10th March, 1787, and arrived at Botany Bay on the 20th
January, 1788. Captain Phillip, who had been appointed
Governor of the settlement, immediately proceeded to
examine the shores of Botany Bay, but not finding there
a situation well calculated for the site of a town, he re-
moved to Port Jackson, and on the banks of one of its
coves he resolved that the new colony should be esta-
blished. Every person belonging to the settlement had
disembarked on the 6th February, and being assembled
in the presence of the Governor, the Judge-Advocate
(Captain Collins) read His Majesty's commission and the
letters-patent for establishing courts of civil and criminal
judicature. The Governor was invested with the power
of pardoning malefactors sentenced to death by the crimi-
nal court; (5) but if he thought the sentence ought to be
carried into execution, he was required to give a warrant
under his hand and seal to the Provost-Marshal, who was
to cause the judgment to be executed according to the in-
structions contained in that warrant. The Governor was
empowered to act as judge in the Court of Appeals, and
in that court to hear and determine cases of appeal from
the Civil Court, where the debt 01' thing in demand should
exceed ~300. He was also constituted a justice of the
peace, with the same power that a justice has in England,
and Vice-Admiral of the territory, with powers similar to
those usually given to persons appointed to like offíces in
the British colonies in America: he was also invested


(4) Two years after the settlement
was formed several convicts stated,
that the respective periods for which
they had been senteneed had expired,
and it was then, and not till then,
diseovered, that the papers neeessary
to aseertain these important particu-
Iars had been left in England, The
prisoners were therefore detained until
the doeuments were reeeived.


(5) The extensive powers of par.
doning given to the Governor by this


commission forro an exception to the
general rule. In a11 the other colo-
nies the Governors are expressly pro-
hibited from granting pardons in cases
of murder 01' treason; and they can
only respire criminals convieted oí
these offenees till His Majesty's pleu-
sure shall be known, Probably this
exeeption was oeeasioned by the pe-
culiar circumstances under whieh this
settlement was established-s-C, C.




NEW SOUTH WALES. 603
with authority to hold general courts-martial, to confirm
01' to set aside the sentence, and also to make orders 1'01'
the good government of the colony.


The first act of parliament relating to the colony is the
27 Geo.3, c. 2; it enacted, that "it shall be lawful for
His Majesty by his commission under the great seal to
authorize the Governor, 01' in his absence the Lieutenant
Governor, to convene from time to time, as occasion may
require, a court of criminal jurisdiction for the trial and
punishment of all such outrages and misbehaviours as if
committed within this real m would be deemed and taken
according to the laws of this realm, to be treason 01' mis-
prision thereof, felony 01' misdemeanor." The court was
to be a court of record, and to consist of the judge-advo-
cate and such six. officers of the sea and land service as
the Governor by precept issued under his hand and seal
required to assemble. The letters-patent, dated !2d April,
1787, directed that a court of criminal jurisdiction should
be instituted, and they empowered it to inquire of, heal',
determine, and punish all treasons, misprisions of treason,
murders, felonies, forgeries, perjuries, trespasses, and
other crimes 01' offences whatsoever that might be com-
mitted in the colony. The mode of proceeding was this :
-the charge against an offender was reduced into writing
and exhibited by the judge; witnesses were examined upon
oath, and according to the opinions of the majority of the
court the prisoner 01' defendant was adjudged to be guilty
01' not guilty.(6) If guilty, and the offence was capital,
the court pronounced judgment of death in like manner
as if the prisoner had becn convicted by the verdict of
a jury in England, 01' awarded sueh corporal punishment
as the major part of the court deemed meet ; and in cases
not capital the court adjudged such corporal punishment
as the majority of the members determined upon. No
offender, however, could be sentenced to suffer death
unless five members of the court concurred in finding him
guilty, 01' if five members did not agree in the award,
until the King's pleasure was signified thereupon.


(6) Mr. Judge-Advoeate Wylde
used to retire with the members of
the court, after the evidence in each
case was concluded, to deliberate
upon the verdict in an adjoining room.
This praetice was continued until


1820, when the J udge-Advocate, on
the suggestion of Mr, Commissioner
Bigge, charged the members of the
court in the presence of the prisoner
and the publíc.c-Mr, Como .6igge's
Rep, p.B.




604 NEW SOUTH WALES.
A Vice-Admiralty Court for the trial of offcnces COl11-


mitted upon the high seas was also constituted. (7 )
The letters-patent dated 4th February, 1814<, recited


the part of the former patent of the 2d April, 1787, re-
lating to the institution and appointment of the criminal
court, and made no change in its mode of procedure, its
powel's, 01' in the extent of its jurisdiction. The criminal
laws continued to be administered under the same autho-
rity until the act 4 Geo.4, c. 96, was passed; that act
authorized his Majesty to remodel the courts for the ad-
ministration of the criminallaw, and the charter of justice,
dated 13th October, ]823, which followed, placed the
courts upon their present footing, there having been no
new charter issued since the passing of the 9 Geo. 4,
c. 83, (8) the provisions of which last-mentioned act did
not materially val'Y from the 4 Geo, 4, c. 96.


The authority nnder which the first civil judicature of
the colony and its dependencies exercised its functions, was
derived solely from Bis Majesty's commissions and Iet-
ters-patent, for no act of parliarnent(9) empowered Bis
Majesty to establish any form of civil judicature; and the
fonn marked out and established was as great a departure
frorn the laws and usages of England as that of the cri-
minal judicature.


The Civil Court, consisting of the Judge-Advocate and
two inhabitants of the settlement appointed by the Go-
vernor, heard and deterrnincd in a summary way all pieas
of lands, houses, debts, contracts, and all personal pleas
whatscever. The court was empowered to summon the
parties, to examine witnesses on oath, and to issue execu-
tion under the hand of the judge-advocate.


A party, feeling aggrieved by a decisión of this court,
was at liberty to appeal too the Governor, and from him,
where the debt 01' thing in demand exceeded the value of


(7) Collins' (Judge-Advoeate) ac-
eount of the eolony óf N ew South
Wales, Barriogton, in his work upon
New South Wales, also states, that
the Viee-Admiralty Court had the
power to try offenders; but Mr. \Vent-
worth, in the second edition uf his
work, published in 1820, says, that
"the COUl't of Vice-Admiralty con-
sists of the judge-advocate, and takes
cognizance of captures, salvages, and


such other matters of dispute respect-
ing property as arise on the high seas,
but it has no criminal jurisdiction,
It is prubable that when the court of
criminal judicatura was instituted,
that the criminal business of the Vice.
Adrniralty Court was removed to it,"


(8) See the Charter, post.
(9) The 27 Geo.3, c. 2, onlyau.


thorized His Majesty to establish a,
court of criminal judicature,




NEW SOUTII WALES • 605
.f300, to the King in Council, This court was also em-
powered to grant probares of wills and administrations of
the personal estates of intestates dying within the colony.


The civil and criminal judicatures were united under
the presidency of one person holding the office of judge-
advocate until the year 1814, when an alteration was
effected by a new commission and letters-patent, dated
on the 4th February in that year. The change consisted
of a separation of the civil and criminal judicatures, and
of the appointment of three new civil courts, viz. Supreme
Court, Governor's Court in New South Wales, and Lieu-
tenant-Governor's Court in Van Diemen's Land.(l) The
principal court at this period was the High Court of
Appeals, which was presided over by the Governor,
assisted by the -Iudge-Advocate.pé) In this court ap-
peals were heard against decisions of the Supreme Court,
and its judgments were final in all cases where the sum
sued ,rOl' did not exceed ~'3000, but where it exceeded
that amount, an appeal lay to the King in Council, 'I'he
Supreme Court was composed of a judge of the court,
and two magistrates appointed by precept from the Go-
vernor, and had jurisdiction in aH pleas where the
matter in dispute exceeded oeso sterling. The Gover-
nor's Court consisted of the Judge-Advocate and two in-
habitants appointed by precept from the Governor, and
took cognizance of all pleas (not arising between party
and party at Van Diemen's Land,) (3) where the amount
sought to be recovered was under ,[50 sterling, and from
its decision there was no appeal.


These courts regulated their decisions by the laws of
England, but the judge of the Supreme Court endea-
voured to give effect to the local regulations (4) puhlished
at different periods by the authority of the Governor of
thecolony when he found them to he conformable to the
spirit 01' to the provisions of the law of England, and to


(1) Mr. Comm. Bigge's Report,
p.2•.


(2) 2d edito Wentworth, p. 341.
(3) The Lieut-Govemor's Court in


Van Diernen's Land had a similar
jurisdiction in that island, .


(4) Mr. Comrnissioner Digge's Re-
port. Mr, Wenlwortb, in the second
edition of his work, denies this, and
says, "tbese courts take no notice


whatever of the laws and regulations
which have been made at various
times by the local government. The
enforcement of these is left entirely lo
the rnagistracy, who assernble weekly
in the different towns throughoul the
colony, and take cognizance of all in-
fractions as well of the colonial as of
the criminal code."




606 NEW SOUTH WALES.
be beneficial in their operation, 01' even where he thought
that they were essential for the support of the system by
which the colony was govemed. (5)


The act 4 Geo.4, c. 96., followed by a charter of justíce
framed in pursuance of its provisions, effected as great
a change in the mode of administering the civil as it did
in that of the criminallaw of the colony. Since then the
9 Geo. 4, c.83, has made some slight changes, but not
such as to render a new charter actuaHy necessary.


CIVIL GOVERNMENT.


The Governor of this colony is appointed to his office
by two letters-pateut, the first constituting him Governor
of the territory of New South 'Vales, and the second,
Captain-General and Governor-in-chief of Van Diemen's
Land. (6) The Governor is the principal member of the
Executive Council, consisting, besides himself, of the
Lieutenant-Governor, the Colonial Secretary, the Colonial
Treasurer, and the Archdeacon.


He presides and votes at the sittings of the Legislative
Council, and when the numbers on a division are equal
he has the casting vote.


The Governor is authorized to impose on importation
into the colony duties not exceeding lOs. a gallon upon
spirits, the produce and manufacture of the United King-
dom, 01' the produce of British West India colonies; not
exceeding 15s. upon all other spirits; not exceeding 4s.
per lb. upon tobacco, und not exceeding J:15 pel' cent.


(5) The Governor issued proclama.
tions and orders upon any subject-
sometimes, but not always, the courts
required them to be obeyed. Gover-
nor Macquarie did even more, for
upon one occasion, without issuing any
public order 01' proclamation, he di-
rected two constables to conceal them-
selves in a place where the inhabit-
ants of Sydney were accustorned lo
walk, and to arrest those who tres-
passed on a particular spot, Tbree
freemen, three convicts, and Iwo wo-
men were arrested, and immediately
taken to gaol; the nexl day the Go·
vernor, without seeing 01' hearing


them in 'defence, ordered 25 lashes to
be inflicted on each of the three .free-
men and on one of the convicts, 30
lashes on the other two convicts, and
directed ths women to be confined for
48 hours. This illegal act of the G0-
vernor created universal alarrn among
the colonists.c--See 1\11'. Como Bigge's
Rep. p. 48.


(6) The warrants for appointing
General Bourke, the present Governor,
lo these offices, are severally dated
aouMay, 1831. He is the first Go-
vernor appointcd since Van Diemen's
Land was declared independent of
New South Wales.




NEW SOUTH WALES. 607
upon goods, wares and merchandize, not being the growth,
produce 01' manufacture of the United Kingdom. (7)


The Governor is also empowered to levy upon colonial
manufactured spirits a duty not exceeding the duty upon
imported spirits, (8)


The 20th section of the 9 Geo, 4, c. 83, declares it to
be at present inexpedient to call a legislative assembly for
the colony, and in lieu of one provides, that it shall be
lawful for His Majesty, by warrants under his sign ma-
nual, to constitute and appoint a couneil of such persons
resident in the colony, not cxceeding fifteen nor less than
ten, as His Majesty shall be pleased to nominate and ap-
point. In case of death, absence, removal, 01' resignation
of a member of the Couneil, the Governor may appoint
another to act in his stead until His Majesty's pleasure
be known, In concert with at least two-thirds of the
members of the Council on tbe list, (exclusive of the Go-
vernor 01' presiding member,) the Governor has the power
to make laws and ordinances for the peace, welfare, and
good government of the colony, sueh laws and ordinances .
not being repugnant to the act 9 Geo. 4, c. 83, 01' to
any charter 01' letters-patent, 01' order in couneil, 01' to
the laws of England, but consistent with sueh laws so far
.as the circumstances of the colony will admito The 00-
vernor has the initiative of all laws and ordinances to
be submitted to diseussion in the Council; and it is pro-
vided, that notice of the general objects of every act
proposed to be brought into consideration, shall be sent
by the Governor to one 01' more of the newspapers for
insertion, eight clear days at least before a law shall be
passed, 01' in case there be no newspapers, such notice
shall be given by sorne other mode of public advertise-
ment j but in cases of emergeney, 01' where actual danger
would arise from the delay of eight days, the notice may
be dispensed with, Ir a majority of the members dissent
from any bill, and enter the grounds of their dissent in
the minutes of the Council, the bilI cannot be passed into
a law. Any member of the Council may request the
Governor to introduce a bill for the consideration of the
Council; and if the Governor shall decline, he must lay
his reasons in writing, together with a copy of the bill,


(7) 3 Geo. 4, c.96, continued in
force by 9 Geo. 4, c. 83, s.26.


(8) 59 Geo.3, c. 114, continued
by 3 Geo.4, c.96, and subsequentIy
made perpetua) by 9 Geo, 4, c. 83,
s, 26.




GOS NEW SOUTH WALES.
before tbe ~uncil; and any member disapproving of such
refusal, may enter upon the minutes the grounds of bis
disapprobation, (9) -Every bill passed by the Couneil
rnust be transmitted within seven days to the Supreme
Court to be enrolled, and after fourteen days from the
date of such enrolment it comes into operation. It is
provided, however, that if the judges shall represent to
the Governor that sueh bill is repugnant to the act
9 Geo.4" e. 83, to the charters 01' letters-patent, 01' to
the laws of England; then the Governor must suspend
sueh bill until it has been brought, together with the
rep1-esentation, under the review of the Couneil, and if
the Governor and Couneil upon review of such bill,
differ from the opinions of the judges, and still adhere to
the proposed law, a written notiee of such resolution is to
be transmitted by the Governor to the judges, and sueh
law shall thenceforward take effect and be binding until
His Majesty's pleasure shall be known, notwithstanding
any repugnance al' supposed repugnanee to the laws 01'
charters, (1)


The Governor and Council are empowered to impose
taxes for local purposes, but the duties levied by the Go-
vernor by authority of 5~ Geo.3, e. 114, and 3 Geo, 4,
e. 96, are to be applied to such purposes as the Governor
may appoint by any law 01' ordinance.Iz)


The members of the Couneil are justices of thc peaee
by virtue of their ofliee, (3) and they take an oath faithfully
to advise and to assist the Govcrnor.G)


COURTS.


The Supremo Court,
The 4 Gco. 4, c. 96, empowered His Majesty, by his


letters-patent, to appoint the Suprerne Court, and ac-
eordingly His Majesty issued lctters-patcnt under the great
seal, bcaring date 13th October, 1823, by the authority


(9) 9 Geo. 4, c. 83, s. 21.
• (1) § 22. Should such a difference


of opinion exist, the judges are re-
quired to state in writing fulIy and at
length the grounds 01' their opinion,
and copies 01' their reasons are to be
transmitted to the Kiug,


(2) 9 Geo, 4, c. 83, s, 27.


(3) 9 Geo. 4, e. 83, s.30.
( 4) They were formerly sworn not


to reveal anything whieh should be-
come known lo them in their capaeity
01' mernbers, but since the last act has
come into operation the oath has not
been administered,




NEW SOUTH WALES. 609
of which the Supremo Court still maintains its jurisdic-
tion, (S) Thc 9 Gco. 4, c. 83, did not make it necessary
that a ncw Charter of Justice should bC,tissued, as the
second section of that act enacted that until other letters-
patent were issued, the Suprcme Court "so instituted by
His Majesty's letters-patent under the great sea), bearing
date the 13th day of October, in the fourth year of His
Majesty's reign (1823,) shall retain and exercise the juris-
diction and powcr in such court vcsted by His Majesty's
said lctters-patent, so far as the same may not be altered
by this act, as fully and effectually as if such court had
been instituted in virtue and pursuance of this act; alld
the said letters-patent, and all orders, acts, matters, and
things made and done in pmsuance of the powers and
authorities vested in His Majesty in and by the said act
passed in the 4,th yea,r of the reign of his present Ma-
jesty, (Geo. 40th,) shall be of the same force and effect as
if the same had been issued, made, done, and performed
by vírtue and in pursuancc of this act."


The Supremo Court is a Court of Record, and has cog-
nizance of all pleas, civil, criminal, 01' mixed, and jurisdic-
tion in all cases whatsoever, as fully and amply to aH
intents and pmposes in N ew South \Vales and all and
every the islands and territories which now are 01' hereafter
may be subject to 01' dependent upon the government
thereof, as His Majesty's Courts of King's Bench, Com-
mon Pleas, and Exchequer at Westminster, 01' either of
them, lawfully have 01' hath in England. On the trial
of every issue of fact joined between the parties' in any
action at law cognizable in the Supreme Court, where
the ~um 01' value of the matter in dispute exceeds .t:SOO
sterling, and where the trial shaH not be by jury, the
judges cause the evidence to be taken clown in writing by
a clerk 01' officer, and to be repeated in open court to the
witnesses giving the same, and the evidence so taken is
entered upon the proceedings of the court as matter of
record; and in every case of appeal to His Majesty in
Council copies of all the documents and papers that are
produced and given in evidence, 01' rejected, are required


(5) The Registrar is the responsi-
ble keeper of t he archives of the Su.
preme Court, having the custody of
wills, &c. He is the depositary of
the memorials of registry of all titles
of Jand and sccurities upoo land in


the colony, the only officer empowered
to receive such memorials upon oath 1
moreover, the Registrar has solecharge
of intestates' estates.-New South
Wales Magazine, November I, 1833,
p.194. -


RR




610 NEW SOUTH WALES.
to be duly authenticated by the clerk and anncxcd to thc
record as part thereof


The powers that the judges have who are appointed to
preside in the court, are as extensive as those of the
Judges of the Courts of King's Bench, Common Pleas,
and Exchequer, in England.


The Supreme Court is a Court of Oyer and "I'erminer
and Gaol Delivery; it is also empowered to inquire of, hear,
and determine a11 treasons, piracies, felonies, robberies,
murders, conspiracies, and other offences, of what nature
01' kind soever, committed 01' that 8ha11 be committed upon
the sea, 01' in any haven, river, creek, 01' place where the
admiral hath power, authority, 01' jurisdiction, 01' commit-
ted 01' that sha11 be committed in the islands of New
Zealand, Otaheite, 01' any other island, country, 01' place
situate in the Indian 01' Pacific Oceans, and not snbjeet to
Bis Majesty 01' to any European state. 01' powel', by the
master 01' crew of any British ship 01' vessel, 01' any of
them, 01' by any British suhject sailing in 01' belonging to,
01' that shall have sailed in 01' belonged to, and have
quitted any British ship 01' vessel to live in any part of the
said islands, countries, 01' plaees, 01' tbat shall be there
living; and that a11 persons convieted of any of the offences
so to be inquired of, heard, 01' determined in the said
court shall be subject and liable to, and sha11 suffer all
such and the same pains, pena!ties, and forfeitures as hy
any law 01' laws now in force persons convieted of the
same would be subjeet and liable to in case the same had
been committed and were respectively inquired of, tried,
heard, and determined and adjudged in England, any law,
statute, 01' usage to the contrary notwithstanding. (6)


The Supreme Court is also a Court cf Equity, and has
power and authority to administer justiee, and to do,
exercise, and perform a1l such acts, matters, and things,
neeessary for the due exeeution of sueh equitable juris-
diction, as the Lord High Chancellor can, or lawfully
may, within the realm of England; and all sueh aets,
matters, and things as can 01' may be done by the said
Lord High Chancellor within the realm of England in the
exercise of the eommon law jurisdictioú to him belonging.
The Charter of Justiee expressly authorizes the Supreme


(6) An information or iudictment
upon 9 Geo. 4, c. B3, s, 4, must aver
that the otrender is a British subject,
nnd thal the ship is a British ship ;


and cvidcnce must be given lo sup-
porl hotb these allegations. See !ter
v, Helshum, 4 Caro &. Payne's Rep.
p.394.




~EW SOUTII WALES. 611
Court to appoint guanlians and keepers of infants and
their estates, and also of the pe1'sonsand estates of natural
fools, and of sueh as are 01' shall be deprived of their un-
derstanding 01' reason by the aet of God, so as to be
unable to govern themselves and their estates, which the
court may inquire of, hear, and determine by inspection
of the person, 01' sueh other ways and means by whieh the
truth may be best diseovered and known.


The !) Geo. 4, e. 83, enaets that the Supreme Court
shall have ecclesiastical jurisdiction, and shall have full
power and authovity to administer and exeeute sueh
eeclesiastieal jurisdietion and authority as hath been 01'
shall be committed to the said Supreme Court by His
Majesty's said eharter 01' letters-patent so issued 01' to be
issued as aforesaid; provided that in aU cases where the
executor 01' exeeutors of any will, upon being duly cíted,
shaU refuse 01' neglect to take out probate, 01' where the
next of kin shall be absent and the effeets of the deeeased
shall appear to the said courts to be exposed and Iiable
to waste, it shaIl be lawful for the said eourts respectively
to authorize and empower the registrar 01' other minis-
terial officer of the said Supreme Court to coUeet sueh
effeets, and hold 01' deposit 01' invest the same in such
manner and place, 01' upon such security and subject to
sueh ordersand directions as shall be made, either as
applícable in all such cases 01' specially in any case, by
the said court in respect of the custody, control, 01' dis-
posal thereof.


The Charter of Justice gives the court fuU power to
grant probates under the seal of the court "of all 01' nny
of the inhabitants of that part of the said colony and its
dependencies situate in the island of N ew HoUand, and
of all other persons who shall die and leave personal
effects within that part of the said colony ;"and where
the executor .refusea to aet, or the testator dies intestate,
01' does not name an exeeutor resident within the colony,
to commit letters of administration with the wiII annexed,
and to sequester the goods and chattels and credits and
other effects whatsoever of such persons so dying, in cases
allowed by law, as the same is and may be now used in
the diocese of London, and to demand, require, take, hear,
examine, and allow, and if occasion require to disallow
and reject the amounts of them, in sueh manner and form
as is now used 01' may be used in the said diocese of


R R 2




612 NEW SOUTH \VALES.
London. The court however is rcquired, where letters
ofadministration shall be committed with the will annexed,
for want of an exeeutor appearing in due time to sue forth
the probate, to reserve the power and authority to revoke
the same, and to grant probate of the said will to such
executor whenever he shall duly appear and sue for the
same, Tbe court may grant letters of administration with
the will annexed to any one 01' more of tbe lawful next of
kin of such person so dying and being then resident in the
colony and of the age of twenty-one years; and in case no
such person shall be resídent, 01' being cited shall not ap-
peal' and pray the same, then to the registrar of the court,
01' to any other person 01' persons as the court shall see fit.
The probates are not to extend to money, goods, cbattels,
01' effects not within the colony. The eourt, befare
granting letters of administration, is bound to requirc a
bond of every person to whom they shall he committed,
and also to require sureties for the due administration of
the effects. The court has the power to alIow an execu-
tor 01' administrator such commission al' per centage out
of the assets as shalI be just and reasonable for his
pains and trouble, if the executor 01' administrator shall
have passed his accounts and obeyed the orders of the
court,


The Supreme Court is empowered by an Act of the
Legislative Council to appoint trustees to discover, collect,
and receive the estates and effects of insolvents, and to
make orders for the distribution of the produce of such
effects equally and rateably among the ereditors. It may
be observed that the Iaws in force within the colony upon
the subjeet of insolvents' effects, are based upon the In-
solvent Debtors' Act in operation in England, and that
the powers of rhe court in this respect are preeisely the
same as the Insolvent Debtors' Court in England, except-
ing that the Judge of the Supreme Court has authority to
grant certificates diseharging the insolvent from future
liability, with the consent in writing of the major part in
number and value of the creditors, with a restriction, how-
ever, that such certificare shall not be allowed a second
time to the same person, " unless his 01' her estate, when
collected and realized, shall be sufficient to pay at Ieast
158. in the pound , aml also that no pel'son 01' persons
who shall be declared insolvent a third time 01' oftener
shall he entitled to any such certificate."




NEW SOU'l'II \VALES. 613
An Order in Couneil, dated October 19th, 18~4, au-


thorized the Chief Justice of the Supreme Court to make
" rules and orders touehing and eoncerning the time and
place of holding the sittings of the Supreme Court, the
forms and manner of proeeeding, and the practice and
pleadings upon all indictments, informations, actions, suits,
&e., and all other matters to be brought therein," Accord-
ingly, on the 5252d June, 18525, the Chief Justicc, Francis
Forbes, Esq., issued several orders regulating the prac-
tice oí the court, The first was, perhaps, the most im-
portant, It directed «tbat tbe respective rules and orders,
forros and manner of practice and proceeding of and in
His Majesty's principal Courts at Westminster, that is to
say, the Courts of King's Bench and Excbequer and tbe
High Court of Chancery, and of and in tbe Ecclesiastical
Court witbin the diocese of London, called the Consistory
Court, sball from and after the date of this order be
adopted and followed in tbe exercise of tbe several juris-
dictíons of the said Supreme Court of N ew South Wales,
so far as the circumstances and eondition of the said
colony shall require and admit, and so far as such rules
and orders and forms of practice sball 01' may not be
herein 01' at any time hereafter altered by sorne rule 01'
order specificalIy provided and adapted to the conduct of
business in the said Supreme Court," The second order
provided that the proceedings within the several and re-
spective jurisdictions of the Supreme Court should be
commenced and continued in a distinct and separate formo
The third order provided that the fees for business should
be the same as those charged by and alIowed to the prac-
titioners and officers of the eourts in England. There
were others to the numher of nine, but they have since
been abrogated.


On the 9th September, 18526, several new rules were
issued. The first required that "every action at law
which shalI hereafter be eommenced shall be entered in a
short manner, setting forth the form of the action, and
the nature of the process which may be required, in a
book to be kept in the office of the Supreme Court, to be
called the 'clerk's book,' for such purpose; and shall be
signed by the plaintiff in such action, 01' by his lawful
attorney." The ordinary process of the court is a sum-
mons calling upon the defendant to appear on a day
named to answer in an action commcnced; the nature oí




NEW SOUTH WALES.


the action is then set forth, according to the form in which
it hasheen already entered in the clerk's book, and the
procese concludes "as will more particularly he set forth
in a declaration to he then and there exhibited." The
third rule gives the form of a warrant of arrest, and the
next declares the times when process shall be returnable.
The fifth rule alters the times previously fixed for the
terms, declaring they shall eommence and determine on
the first and last days of the months of March, June, Sep-
tember, and Deeember; provided "that if the said months
shall commence 01' end upon a Sunday, the said terms
sha11 eommence the Monday fo11owing 01' end the Satur-
day preceding." The ninth rule directs that the manner
of appearing sha11 be by a brief entry in the "clerk's
book" under the entry of the action appeared to; but if
the defendant shall fail to appear on the day required by
the procesa, the plaintiff shall enter an appearance and
proceed as if the defendant had appeared. The tenth
rule is one of rather a novel charaeter, for it allows a de-
fendant 01' defendants, when he 01' they eannot be found
by the sheriff, to be summoned to appear byadvertise-
ment in the Sydney Gazette, and in case the defendant 01'
defendants do not appear on the day mentioned in sueh
notice "the plaintiff may, upon due proof thereof, enter a
suggestion to such effect in the said court, and the same
shall be minuted in the clerk's book; and the plaintiff
may thereupon proeeed in sueh aetion in like manner as
if such defendant 01' defendants had been (7) outlawed by
due course of law." The eleventh rule requires a de-
claration 01' a particular of demand to be filed before the
day on which the defendant is to appear, in default of
whieh a non pros may be entered, The twelfth rule
allows partieulars of demand to be filed instead of a de-
claration in a11 cases where the Courts at Westminster
require partieulars to be given. The same rule direets
that when a declaration is filed it shall set forth "in a
plain, simple, and compendious manner, the true cause
for which the plaintiff brings his aetion, and particularly
avoiding all superfluous forms and unneeessary matter."
The thirteenth rule provides that no nonsuit 01' dcmurrer
shall be allowed for mistake between aetions of trespass


(7) See ante, 93, u, (9), and the cases there cited,




NEW SOUTH W ALES. 615
and case. The fourteenth, fifteenth, and sixteenth rules
require that pleas 01' demurrers shall be filed within eight
days from the return of the writ; but alIow the general
issue to be filed "as often as the nature of the defence
intended to be relied on will admit of a general denial of
the plaintiff's cause of action," 01', instead of a special
pIea, the general issue and thc filing notice of the special
matter upon which the defendant intends to insist in
evidcnce. But if any new matter shall arise during the
proceedings, a judge may allow the defendant to amend
his notico, and then evidence of such new matter may be
received. A replication must be filed within twelve days
from the return day of the writ. The twenty-third rule
allows witnesses, whose evidence is necessary in any
action, and who are about to leave the colony, to be
examined before a judge, and the depositions to be read
at the trial; and the twenty-fourth rule directs that judges
may issue commissions for the examination of witnesses
de bene esse in cases where the witnesses shall be beyond
the seas, 01' aged 01' infírm, 01' otherwise disabled from
attending the trial. The twenty-fifth rule provides that
the original pleadings in the cause, and the book of mi-
nutes relating thereto, shall be in the place of, and of the
like force and effect as, a record of nisi prius regularly
made up and passed. By rule 26 the verdiet, is tobe
entered by the clerk in his minute book. Rúle 31 pro-
vides "that immediately after judgment shaIl be pro-
nouneed it shalI be entered in the clerk's book, and such
entry shaIl set forth the debt, damages, costs, 01' thing
recovered, and the day on which such judgment was
pronounced, AmI the party obtaining such judgment
shall, befare execution, file in the office of the Supreme
Court a 1'O1l of such judgment, wherein shall be set forth
in a compendious manner the substantial parts only of the
proceedings; viz, the style of the court, the term and
time of signing judgment, the names of the parties and of
their respective attornies, the nature of the action, the
material parts of the pleadings, and the judgment"of the
court, By rule 43 execution may be taken out at any
time after judgment obtained and entered. The attorney
for the party is required to indorse on the writ the sum
boná fide due, and the sheriff is to levy accordingly. The
defendant may point out the lands he desillts to be first
sold, and should thcy not realize the amount levied for,




616 NEW SOUTH WALES.
the sheriff is to procecd to sen the remainder ; and Tn
case there shall be any surplus arising from the sale, the
sheriff is to cause it to be paid to the defendant, 01' his
attorney, within six days after he shaIlhave received the
same, By rule 41 it is declared "that where any judg-
lll,ent by default shall be obtained against any person who
at the time of sueh judgment shaIl have been absent (8)
from New South Wales, and such person shaIl, at any
time .thin two years after the passing of such judgment,
appeár before the court and allege that more money hath
been levied under such judgment than was due, the court
shall, in a summary way, proceed to inquire into the case;
and if it shall be proved that more money hath been so
levied 01' paid than was justly due, the court shall order
the surplus, together with the levy fees thereon, to be
restored by the plaintiff, and upon his refusal ti> make
such restitution, the sum so ordered to be restored, toge-
ther with the costs, shaIl be levied by execution. Rule
452. "That where judgment shall pass by default against
any infant 01' person being non campos mentis, such judg-
ment may be inquired into and set aside in the like sum-
mary manner by the said court, at any time within five
years after such disability shaIl be removed; provided,
however, that no such summary proceeding shaIl be
allowed in cases where, by the laws of England, infaney
is not assignable for error." The forty-third rule pro-
vides that no judgment shaIl be entered up on a warrant
of attorney unless it shall appear, by the subscription of a
justice 01' an attorney duly adrnitted in the Supreme
Court, to have been made in his presence. The forty-
fourth rule allows the representatives, when a party to a
suit dies, if such action, suit, 01' other proceeding might
have been originaIly prosecuted 01' maintained by 01'
against the heirs, executors, 01' administrators, to be
made parties to such suit, and thereupon a suggestion of
the death of the original party and the admission of his
heirs, exeeutors, 01' administrators in his. stead, shaIl be
entered in the clerk's book, and such action, suit, 01' other
proeeeding shall be continued in like manner as if such
heirs, executors, 01' administrators had been originally
parties thereto. The forty-fifth rule declares "that it


(8) See ante 93, n. (9), and the cases there cited,




NEW SOUTH WAI,ES. ()17
sha11 be lawful for a plaintiff or defcndant in any suit
where a party being afeme sale at the commencement of
the suit shall afterwards intermarry, to apply for a rule to
make the husband a party." The forty-eighth rule pro-
vides that the court may dispense with any particular rule
if the adhering to it would prove a hardship to a suitor,


The fiftieth rule declares that " the court shall hold its
sessions in four certain months in cvery year, forthe
hearing and determioing of crimes and misdemeanors,
and for the delivery of the gaols, or oftener, as occasion
shall require; and the said months shall be February,
May, August, and November, respectively."


CIRCUIT COURTS.


These courts are instituted by His Majesty's Order in
Council, which the 9 Geo. 4, c. 83, s. 13, permitted to be
issued, These courts are Courts of Record and stand in
the same relation to the Supreme Court as Courts of
Oyer and Terminer and of Assize and Nisi Prius in
England stand in relation to the King's superior Courts
of Record at Westminster.


Vice-Admiralty Court,
The Chief Justice is the judge of this court, and


the commission investing him with the office gives him
the power to hear and determine questions of salvage,
disputes about seamen's wages, &c.; but does not au-
thorize him to ínterfere in criminal cases, as the Supreme
Court is empowered to take cognizance of offences com-
mitted in places whcre the admiral has jurisdiction.


General and Quarter Sessions.
The Courts of General and Quarter Sessions may take


cognizance, in a summary way, of a11 crimes, ~isde.
meanors, and other offences or misconduct not pumshable
by death, committed by convicts whose sentences have
not expired, 01' have not been remitted; but persons not
being convicts are trierl according to the forms adopted in
the Supreme Court,


They take cognizance of all matters and things that
may be inquired of in Courts of General and Quarter




618 NEW SOUTll W ALES.
Sessions in England, so far as the circumstances and con-
dition of the colony will permito


Courts of Request.
These courts are established under the authority of the


9 Geo, 4, c. 83, and are authorized to hear and deter-
mine, in a summary way, all actions, plaints, and suits for
the payment or recovery of any debt, damages, 01' matter
not exceeding ..E1O sterling, except the matter in question
relates to the title to any lands, tenements, 01' heredita-
ments, 01' to the taking 01' demanding of any duty payable
to His Majesty, or to any fee of office, annual rent, 01'
other such matter where rights in future would be bound,
01' to any general right or duty, and to award costs, The
decision oí the court is final, and is carried into execution
by attachment and sale of the goods and effects, 01' by
corporal arresto One commissioner presides in all the
courts ; he receives his appointment under the sign ma-
nual, with such salary as His Majesty shall directo


The Archdeacon's Court.
This court, which has jurisdiction in ecclesiastical affaire,


is appointed by charter. This colony, as well as those of
Van Dieman's Land and Swan River, is lit present within
the see oí Calcutta, and is called the Australian Archdea-
conry, there being one archdeacon appointed by Bis Ma-
jesty to superintend the spiritual concerns of the colonists,
It does not appear, however, that the archdeacon has ever
exercised any power except that of receiving the registers
oí births, though he has appointed a registrar, and has
powers equal to those of the bishop whilst the bishop is
absent from thatpart of his diocese. (9)


(9) An Order in Couneil, issued
on the 2d October, in the fifth year
of the roign of Geo, 4th, appointed
the Archdeacon and his successors a
body corporate, to hold any property
within the settlernents, and to appear
and deferid suits in the courts as such,
It also appointed the Archdeacon
Commissary of the llishop of Calcutta
within the scttlerucnts, with po"cr lo


excrcise jurlsdiction in all ecclcslaatl,
cal matters (excepting causes testa-
mentary or matrimonial) according
lo the duty and functions of a Com-
míssary by the ecclesiastical laws, As
the Archdeacon has jurisdietion givcn
him in hls arehdeaconry, the appoint-
meut of Comrnlssary appears superfluo
ous.-4 Inst. 338. Bum's Eccleslasti-
cal Law, titles Chanccllor,Commissary.




j'; EW IiOUTU W ALES. 619


Court cf Appeals.
From the decisions of the Suprerne Court an appeal


lies, (1) in all actions where the sum 01' mattcr at issue ex-
cecds the value of ¿[500, to the Governor 01' acting Go-
vernor for the time being, one 01' the other of whom (as the
case may be) is directed from time to time to hold a court
to be called "The Court of Appeals of the Colony of
New South Wales j" and by a subsequent section of the
act 4 Geo, 4" c. 96, it is further provided, "that it shaIl
and may be lawful for His Majesty to aIlow any person 01'
persons, feeling aggrieved by any judgment, decree, order,
01' sentence of the said Court of Appeals, to appeal there-
from to His Majesty in Council, in such manner, within
suct time, and under and subject to such rules, regula-
tions, and limitations as His Majesty, by his chárter and
letters-patent, shall appoint and prescribe." It is pro-
vided also, that " in case it shall be made to appear to the
satisfaction of the Judge of the Supreme Court that the
judgmcnt, dccree, order, 01' sentence of the COUl't may be
of peculiar importance, 01' may affcct directly 01' indirectly
any claim, demand, 01' question to 01' respecting property,
or any civil right amounting to 01' of the val~ of ¿[500
sterling," an appeal shaIl be permitted to the said Court
of Appeal, " although the sum 01' matter at issue, for 01'
in respect of which such judgment, decree, order, 01' sen-
tence shall 01' may be given, made, 01' pronounced, shall
not amount to 01' be of the value of ¿[500 sterling." And
to encourage and promote the introduction and use of
trial by jury in civil cases among the colonists, it is further
provided, that "upon any appeal to be brought to the
said Court of Appeals from any judgment of the said
Supremc Court, founded upon the verdict of a jury of
twelve men, the said Court of Appeals shaIl not reverse,
alter, 01' inquire into tbe said judgment, except only for
error of law apparent upon the record."


In case any judgment, decree, order, 01' sentence sball
be pronounced by the Court of Appeals for 01' in respect
of any sum 01' mattcr at issue aboye the value of .t:BOOO
sterling, 01' in case such judgment, decree, order, 01' sen-
tence shaIl involvc directIy 01' indirectJy any c1aim, de-


(1) Wentworlh, 3d ed, p. 341.




6.z0 liWW SoUTH WALES.
mand 01' question to 01' respecting property, 01' any civil
right amounting to 01' of the value of .t'ZOOO sterling, 01'
in case the said Court of Appeals should reverse 01' vary
any decision of the Supreme Court, the party feeling ag-
grieved by such decision may, within fourteen days next
after the same shall have been pronounced, made or
given, apply to the said Court of Appeals by petition for
leave to appeal to the King in Council; and should the
Court of Appeals think that the question in dispute ought
to be referred to the King in Council, the execution is to
be suspended, and the party feeling aggrieved is to find
security for the due performance of the decision of the
King in Council; but should the Court not think fit to
stay execution, the party in whose favour the judgment is
given is to enter into securities for the due performance
of the decision of the King on the appeaI. The Court
of Appeals is also required to take security for costs
from the appellant, and if such security is not given
within three months from the date of such petition for
leave to appeal, the Court of Appeals is not to allow tbe
appeaI. But if the party feeling aggrieved by the deei-
sion of the Court of Appeals shall not be able to comply
with the above regulations 01' any regulations imposed by
that court, he is not precluded from appealing, as the
power is reserved to the King, on application by humble
petition to His Majesty in Council, to allow such appeal:


. and in case the appeal shall be entertained by the King
in Council, the Supreme Court is to conform to and exe-
cute 01' cause to be executed such judgments and orders
as shall be made in the premises, in such manner as any
original judgment, decree 01' decretal order, 01' other
order 01' rule by the said Supreme Court of New South
Wales would be executed.


TRIALS.


In criminal cases the jury consists of seven officers of
the land 01' sea service appointed by the Governor, but
when seven cannot be obtained, the number is made up
with magistrates of the colony.(2)


(2) By the 9 Geo. 4, c.83, s. 10,
His Majesty is empowered to autho-
rize the Governor to cxtend and al'-
ply the form of proceeding by grand
and pctit jurics , and from sorne late


inquiries in the colony as to the policy
ofintroducing those constitutionaI bo-
dies iuto the courts, it is not improba-
ble that the present dcformed system
will be shortly abolíshed.




NEW SOUTH WAI,ES. 621
Issues of fact are tricd by a judge and two assessors,


being magistrates, and liable to be chaIlengcd; but either
plaintiff 01' dcfendant may apply for a tria] by jury to the
court, which has the power to grant 01' refusc the motion.


The assessors are appointcd by thc Governor, and
they and the judge decide upon matters of fact,


It has heen usual for the judge to require the asses-
sors to receive thc law upori the matter in dispute from
him, and only to decide upon contested matters of fact;
but in cases where the assessors have differed, the judge
has also decidcd thc matter of fact, that is to say, his
vote upon the matter of fact has created a majority in the
court.


Tl¡e Attorney-Gene1·al.
The Attorney-General is investcd with the peculiar


power of instituting proceedings of a criminal naturo in
the Supreme Court, 01' at the Courts of Quarter Scssions,
as not only are all offences prosccuted by information in
his llame, but he has thc powcr of finding 01' refusing the
information, there being no gmnd jury. He is therefore
to be considered in the light of a public prosecutor.


The Supreme Court, however, may aIlow any individual
to exhibit a criminal information against any person 01'
persons for any crime qr misdemeanor not punishable
with death, but even then the proeeedings are conducted
in the name of the Attorney-General.


Judges, Barristers, &;c.
Thc act 9 Geo. 4, c. 88, allows His Majesty to appoint


not more than three judges of the Supreme Court, and
this number has be en completed.: The requisite qualifica-
tion for a judge is, that he shall be a barrister in England
0\' lreland of not less than five years' standing, and he is
appointed by Bis Majesty, but holds office only during
pleasure.


In case however of the absence, rcsignation 01' death,
01' incapacity from disease 01' infirmity, of a judge, the
Governor may appoint some person to act in his stead
until the jlldge returns to his duties, 01' another appoint-
ment is made by the King.


The judges of the Supreme Court are authorized by
the charter to admit and enrol such and so many persona




6Z2 NEW SOIJTlI \VALES.
having been admitted barristers at lawor advocates in
Great Britain 01' Ireland, 01' having been adrnitted writers,
attornies orsolicitors in one of the courts of Westminster,
Dublin 01' Edinburgh, 01' having be en admitted as proctors
in any ecclesiastical court in England, to act as well in
the character of barristers and advocates as of proctors,
attornies and solicitors in the said court. (3)


LAWS.(4.)
Acts of parliament, .as far as they can be applied to


the present circumstances of thc colony, are in force, and
when any doubt arises as to their applicability, the Go-
vernor and Legislative Council decide the qucstion, (5) if
there is time to refer to them ; but if not, the opinion of
the judge presiding must guide the suitor,


Tbe principal acts of parliarnent particularly relating to
this colony and its dependencies, and now in force there,
are the 54 Geo. 3, c. 15; 4 Geo. 4, c. 96; 5 Geo.d, c. 84;
6 Geo, 1, c. 69; 9 Geo. 4., c. 83; and 2 & 3 ""VIllA, c. 6D.


The 54 Geo.3, c. 15, intituled "An Act for the more
casy Recovery of Dehts in His Majesty's Colonies of New
South Wales," was passed with a view to enable traders
in Great Britain to sue their debtors in the courts of the
colony; it enacted, that in any'auit 01' action depending


(3) A rule by the chief'justice, dated
March 7, 1829, requires that cvery
person who shall intend to apply to
Le admitted an attorney 01 solieitor of
the Supreme Court, shall for the space
01' one full term, previous lo the term
in which he shall apply to be admit-
ted, cause his name, &c. to be affixed
in the office of the Supreme Court, and
to gi ve notice of his intended applica-
tion by advcrtisement in the news-
papers. By a subsequent rule it is
provided, that no person shall in fu-
tura be adrnitted as an advoeate un-
less he be one in Great Britain or
Ireland ; and that no persons shall be
eligible to act as solieitors 01' attor-
nies, unless admitted as solicitors, ato
tornies, proctors, 01' writers to the
signet, in sorne one 01' other of the
King's Supreme Courts within the


United Kingdom of Great Britain 01'
Ireland, or unlcss he has Leen arti-
cIed lo SOrne practising solicitor 01' at-
torney in New South \Vales, and
has served the term of flve years, 01'
unless he has duly served part of the
¡¡ve years 01' articIeship in New South
'Vales, and (he other pnrt in England,
01' vice verslÍ, or shall have served the
term of five years as a clerk in the
offiee of the Supreme Court. This lat-
ter rule, however, is not to come into
operation until His ~Iajcsty'spleasure
is known, it bcing repugnant to the
chárter.


(4) See ante, p.3 to 16. upon the
general topie how far the eolonies are
subjcct to the law 01' the mother-coun-
try.


(5) 9 Geo. 4, c. 83, s. 24.




KCW SOUTIl WALES. 623
"for 01' relating to any debt 01' account, wherein any
person residing in Great Britain shaIl be a party, it shaIl
and may be lawful to and for the plaintiff 01' defendant,
and also to and for any witness to be examined 01' made
use of in such action 01' suit, to verify 01' prove any matter
01' thing by affidavit or affidavits in writing upon oath, 01'
in case the pCl'son making such affidavit be one of the
people called Quakers, then upon his 01' her solemn as-
surance made before any mayor 01' other chief magistrate
of the city, borough 01' town corporate in Gl'eat Bri-
tain,(6) where 01' near to which the person making such
affidavit 01' afflrmation shall reside, and certified and trans-
mitted .under the common sealof such city, borough, 01'
town corporate, 01' the seal of the office of such mayor
01' other chief magistrate, which oath and solemn affirma-
tion every such mayor and chief magistrate shall be and
is hereby authorized and empowered to administer; and
every affidavit 01' affirmation so made, certified and trans-
rnitted, shall in all actions and suits be allowed to be of
the same force and effect as if the person 01' pel'sons
making the sume upon ' oath 01' solemn affirmation as
aforesaid had appeared and sworn 01' aflirmed the matters
contained in such affidavit 01' affirmation vivá ooce in
oren court, 01' upon a commission issued for the examina-
tion. of witnesses, 01' of any party in any such action 01'
suit respectively: provided that in every such affidavit 01'
affirmation there shaIl be expressed the addition of the
party making such affidavit 01' affirmation, and the par-
ticular place of his abode."


The second section of the same act permits, in any
action 01' suit instituted by 01' on behalf of His Majesty
in the colonial courts, the affidavits of witnesses to be
used in the same manner that they may be used in aetions
by subjeets; and the third section declares, that if any
one shall wilfulIy swear 01' affirm anything that is false, he
shall be deemed guilty of perjury.


The fourth seetion of the same act is one of great im-
portance to ereditors; it enacts, that houses, lands, and
nther hereditaments and real estates situate or being
within the said colony of N ew South \Vales 01' its de-


(6) It will be observed that this act of any city, borough or town corporate
does not permit aI1 affidavit to be sworn in Ireland,
before the mayor or chief magtstrute




624 NEW SOUTH WALES.
pendencies bclonging to any persan indebted, shall be
liable to and chargeable with aU just debts, duties and
demands of what nature or kind soever, owing byany
such person to His Majesty or any of his subjects, and
shall and may be assets for the satisfaction thereof,"


Convicts are now transported to these colonies under
thé authority given to His Majesty to appoint places to
which felons may be sent by the 5 Geo. 4" c. 8,1" the 9th
section of which act vests the property in their service in
the Govemor, In order to facilitatc the proof of the con-
viction of convicts in the colonial courts, section 24 enacts,
that the clerk of the court having the custody of the re-
cords of the court where the sentence or order of trans-
portation has been passed or made, is to make out on
rcquest of any person on behalf of His Majesty, and give
a eertificate in writing, containing the éffect and substance
only ofthe indictment and conviction of the offender, and
of the sentcnce or arder of transportation ; which certifi-
cate is evidcnce of tho conviction and sentence or order of
transportation.


By the 3d section 6 Geo.4, c. 69, one 01' more justices
may take cognizance of and punish convicts, whose sen-
tences have not expired or been rcmitted, for any crime
or misdemeanor not punishable with death, and maytake
cognizance of complaints made against such convicts for
drunkenncss, disobedience of orders, neglect of work,
absconding 01' desertion, abusive language to their, his or
her employers or overseers, insubordination 01' other tur-
bulent or disorderlyconduct, or for punishing sueh of-
fenees 01' any of them: provided that no such justice or
justices shall exercise any such powers, authorities, or
jurisdictions as aforesaid, in any case where any court of
general or quarter sessions shall be appointed to be held
within one week after the complaint shall be preferred
against any such offender, at any place not more than
twenty miles distant from the place at which the offence
shall be charged to have been committed. The 4th
section authorizes thc Governor to transport from the
colony any convict again convicted to places which he
may appoint.I'[)


By section 2, 2 & 3 Wm. 4" c. 62, it is enacted, "that


(7) Convicts re-convicted are sent
from New South Wales to Norfolk
Island, and from Van Diemen's Land


to Port Arthur, See ante, p. 600,
notes (1) and (2).




NEW SOUTII WALES. 625
ncither the Governor nor Líeutenant-Governor of any
island, colony 01' settlement, nor any other person, shall
give any pardon 01' ticket of leave to any persoll sentenced
to transportation, 01' who shall receive a pardon on condi-
tion of transportation, 01' any order 01' permission to sus-
pend 01" remit the lahour of any such person, except in
cases of illness, until sueh person, if transported for seven
years, shall have served four ; if transported for fourteen
years, shall have served six; 01' if transported 1'01' life,
shall have served eight years of Iabour ; and that no such
}Jerson shall be capable of acquiring 01' holding any pro-
perty, al' of bringing any aetion for the reeovery of any
property, until after sueh person shall have duly obtained
a pardoñ from the Governor 01' Lieutcnant-Governor of
the eolony 01' settlement in which he 01' she shall have
been eonfined: provided that nothing herein contained
shall in any manner affect Bis Majesty's royal prerogative
of merey."


ACTS PASSED BY TIIE COLONIAL COUNCIL.


Since the Legislative Council has been called together
a great number of acts have been passed, but they chiefly
relate to matters of police and revenue, there are how-
ever others deserving of consideration. The act passed
in 1825, No. 21, entitled "An Act for better regulating
and preserving parish and other Registers of Births,
Baptisms, Marriages and Burlals in New South Wales
and its dependencies, including Van Diemen's Land," is
one of importance : it enacts among other things, that
after the 1st January, ]826, registers of baptisms, mar-
riages and burials shall be kept by the officiating minis-
ters of every parish in books of parehment or durable
paper, and that copies of allentries shall be transmitted
annually to the registrar of the Archdeacon's Court by
the respective ministers of the diffetent.parishes.


The aet passed in 18Q5, No. 22, entitled "An Aet for
registering Deeds and Conveyances in New South Wales,
and for other purposes," is an aet deserving of attention,
as it requires al! deeds, .eonveyances and other instru-
ments (exeept leases for less than three years) to be regís-
tered in the offiee of the Suprerne Court, and when regís-
tered to havc priority aecording to the datc of registration.
The olficer 01' clerk of the Supreme Court reeeiving a


ss




G26 NEW SOU'l'H WALES.
memorial of any instrumcnt for rcgistration, is required
to give a rcceipt for the samc, specifying the day, hour
and time of its delivery, and immediately to indorsc on
the back of sueh memorial the number and the time of its
delivery into the offiee. Deeds by married women, made
and executed in due form of law, and aeknowledged be-
fore one 'of the judges of the Supreme Court in New
South Wales, or if made in Grcat Britain 01' Ireland
before a mayor 01' chief magistrate of any city, shall be
valid, but memorials of such deeds are to be registered in
the o.ffiee of the Supreme Court.


An aet passed in the year 1828, No. 6, authorizcs the
Governor or acting Governor to grant letters of deniza-
tion, (8) which are to be recorded in the ofliee of the
Supreme Court, to such foreigners as may arrive in the
colony with a recommendation to that effect from His
Majesty's Principal Secrctary of State for the colonies.


'I'he act, No. 9, of the same year, "An Act for the
better Regulation of Servants, Labourers and "Vork-
people," provides, that if a servant who shall have en-
tered into an agreement to work for a master, shall neg-
lect 01' refuse to work, 01' shall absent himself from work,
he may be brought before a magistrate, and on conviction
sha11 be committed to the common gaol 01' house of cor-
rection for any time not exceeding six months 01' three
months respectively, and shall forfeit allwages and pay.
The second section of the act enacts, that every person
cmploying a servant previously retained shall be fined
not more than f20 nor less than f5; half of the fine to
be paid to the persQn aggrieved, and the other half to
the Benevolent Society. Thc third section provides, that
servants spoiling, destroying 01' losing any property en-
trusted to them, shall pay double the value of such pro-
pcrty, 01' be committed to gaol for any time not exceed-
ing six nor lcss than one month. Upon proof of any
ill-usage from af¡y employer, magistrates are authorized
by scction 4 to arder amends to the servant to the extent
of six months' wages, and to cancel the agreement be-
tween them. If a party feels aggrieved by the dccision of
a magistrate, he may appeal to the next quarter ses-
sions. (9)


(8) There are also acts passed fOI (9) The 9 GeD.4, e.83, allows
nnturaliziug two forciancrs. mcchauics, artisans, agricultural la-




NEW SOUTH W ALES. 627
'I'he aets rclating to the 'prcss require a person having


a printingpress and types to give notiee thereof to the
Colonial Secretary, undel' a penalty of .f:20; and printers
to affix their names to every book 01' paper printed, under
a penalty of J.:20. N ewspaper editors, printers, proprie-
tors, and publishers, are required to lodge an affidavit
with the Colonial Secretary, stating their abo de, &c., and
to enter into recognizance with sureties to pay all pe·
nalties they may incur in cases of libel before they pub.
lish a number of the papel'. Persons twice convicted of
bIasphemous or seditious libeIs to he banished the settle-
mento


The laws relating to convicta give magistrates power to
punish them summarily, and allow them to be sent to
penal settlements for various offences. A free person
convicted of Iarcenies or other offences for wbich the law
of EngIand assigns transportation as the punishment,
may be treated as a eonvict sent from EngIand, and
sbould he again offend, he may be sent to a penal settle-
mento


-


CHARTER OF JUSTICE-NEW SOtJTH WALES.


13th October, 1823.


GEORGE the Fourth, by the grace of God,of the United Kingdom of
Great Britain and Ireland, King, Defender of thc Faith, to all to whom
these presents shall come, greeting: Whereas by an Act passed in the
Fourth year of our reign, intituled "An Act to provide until the 1st
day of July, 1827, and until the end of the next Session of Parliament,
COl' the better Administration of Justice in New South Wales and Van


. Diemeu's Land, and COl' the more effectual government thereof, and for
other purposes relating thereto,' it was enacted that it should be lawful
for us, our heirs, 01' successors, by charters 01' letters-patent under the
great seal of our United Kingdom of Great Britain and Ireland, to
erect and establish Courts of Judicature in rtew South Wales and Van
Diemen's Land respectively, which should be styled "Th. Supreme


bours and others, to execute in Eng-
land agreements, (without stamps.)
binding themselves to work for seven
yeal's in the colony for the person, his
heirs or assigns, who shall convey
them therc. If mcchanics,&c. should


not adhere to the agreement entered .
into in England when they arrive in
the colony, they may be punished
either under the colonial act 01' the
9 Geo. 4, c.83. '


ssQ




628 NEW SOUTH WALES-CHARTER OF JUSTICE.
Court of New South Walcs," and "Thc Suprerne Court of Van
Diemen's Land ;" and that each of such courts respcctively should be
holden by one judge or chief justice, and should have such ministerial
or other officers as should be necessary for the ad ministration of justice
in the said courts respectively, and for the execution of the judgments,
decrees, orders, and process thereof; and it was enactcd that the said
judges should from time to time be appointed by us, our heirs, and
successors, and that the said ministerial and other officcrs of the said
courts respectively should from time to time be appointed to and re-
moved from their respective ofllccs in such manner as we, our heirs,
and suecessors should by such charters 01' letters-patent as aforesaid
direct; and that the said judges should be respectively entitled to
receive such reasonable salaries, as we, our heirs; and successors should
approve and direct, which salaries should be in lieu of all fees 01' othcr
emoluments whatsoever: Now know ye, that we, upon full considera-
tion of the premises, and of our especial grace, certain knowledge, and
mere motion, have, in pmsuance of the said Act of Parliament, thought
fit to grant, direct, ordain, and appoint, and by these presents do nc-
cordingly for us, our heirs, and successors graut, direct, ordain, and
appoint that there shall be within that part of our colony of New South
Wales situate in the Island of New Holland, a court, which shall be
caUed a Supreme Court of New South WaJes; and we do hereby
create, direct, and constitute the said Supreme Court of New South
Wales to be a court of record; and we do further will, ordain, and
appoipt that the said Supreme Court of New South Wales shall consist
of and be holden by and befare one judge, who shall be and be called
the Chief Justice of the Supreme Court of New South Wales, which
ChiefJ ustice shall be a barrister in Eugland or Ireland of not less than
five years standing, to be named and appointed from time to time by
us, our heirs, and successors, by Ietters-patent under our and their
great seal of the United Kingdom of Great Britain and Ireland; and
such Chief Justice shall hold his office during the pleasure of us, our
heirs, and successors, and not otherwise : And we do hereby give aud
grant to OUT said Chief Justice rank and precedence aboye and before
all our subjeets whomsoever within the colony of New South' Wales
aforesaid, and the islands, territories, and places dependent thereupon,
excepting the Governor er acting Governor for the time beiug of the
saíd colony, and excepting all such persons as by law or usage take
place in England before our Chief Justice of our Court of King's
Bench : And we do further grant, ordain, and appoint that the said
Supreme Court of New South Walcs shall have and use, as occasion
may require, a seal, bearing a device and impression of our royal arms
within an excrgue or label surrounding iho sanie, with this irnpression,
"The Seal of the Supremo Court 01' New South Wales ;" anl we do




NEW SOUTH WAtEs-eIlARTER Ol' JtJSTtCE. 6~
hereby grant, ordain, and appoint that the said seal shall be delivered


to and kept in the custody of the said Chief Justice: And we do further


grant, ordain, and declare that the said ChiefJustice, so long as he shall
hold bis office, shall be entilled to have and receive a salary of .f2000


sterling by the year; and our Governor 01' acting Governor for the time


being of the said colony is hereby directed and required to cause such


salary to be paid to the said Chíef Justice by four quarterly payments,


al the four most usual days of payment in the year, in bilis of exchange


to be drawn by such Governor 01' acling Governor as aforesaid, on the


Lords Commissioners of our Treasury in England, payable to 01' to tbe


order of such Chief Justice, and which bilis shall, by our said Governor


or acting Governor, be accordingly delivered to the said Chief Justice:


And we do further grant, ordain, and declare that the said salary shall


commence and take place in respect to any person who shall be resi-


dent in Great Britaiu or Ireland at the time of his appointment, upon


and frorn the day on which any such person shall thereupon embark 01"


depart from Great Britain 01' Ireland for New South Wales, to take


upon him the execution of the said office; and that the salary of any


such Chief Justice who shall at the time of his appointment be resident


in New South 'Vales aforesaid, shall commence and take place from


and after his taking upon him the execution of such his office: and


that such salary shall be in lieu of all fees of office, perquisites, emolu-


ments, and advantages whatsoever, and that no l'ee of office, perquisite,


emolument, 01' advanlage whatsoever, bther than and except the said


salary, shall be accepted, received, 01' taken by such Chief Justice in
any manner 01' on any account or pretence whatsoever: Provided never-


theless, that it shall be lawful for the said Chief Justice to occupy and


inhabit any official house or residence within the said colony of New


Soutb Wales which hath been or may hereafter be provided for his re-


sidence and occupatíon, without paying to us, our heirs, and successors


any rent for the same, and without being obliged to repair; uphold, or


maintain any such house or official residence at his own costs and


charges: And we do further grant, appoint, and declare that no Chief


Justice of the said Supreme Court of New South Wales shall be capable


of accepting, taking, or performing any other office 01' place of profit or


emolument,on pain that the acceptance of any such other office 01'


place as aforesaid, shall be and be deemed in law defacto an avoidance
of bis office of Chief J ustice, and the salary thereof shall cease and be


deemed to have ceased accordingly frorn the time of such acceptance of


any such other office or place: And we do hereby constitute and


appoint our trusty and well-beloved Francis Forbes, esquire, to be the


first Chief Justice of the said Supreme Court of New South Wales, the


said Francis Forbes being a barrister in England of five years' standing


and upwards : And we do hereby ordain, appoint, and declare that there




630 NEW SOUTH WALES-CHARTER OF JUsTICE.
shall be and belong to the said court the following officers, that is to
say, a Registrar, a Prothonotary, a Master and Keeper of Records, and
such and so many officers as to the ChiefJustice of the said court for the
time being shall from time to time appear to be necessary for the admi-
nistration of justíce, and the due execution oí all the powers and
authorities which are granted and committed (o the said court by these
our Ietters-patent: Provided nevertheless, that no new office shall be
created in the said court, unless the Governor or acting Governor for
the time being of our said colony sha11 first signify his approbation
'thereof to our said ChiefJustice for the time being, in writing, under the
hand of sueh Governor or aeting Governor as aforesaid: And we do fur-
ther ordain and direet that al1 persons who sha11 and may be appointed
to the several offices of Master, Registrar, Prothonotaryor Keeper of Re-
cords ofthe said Supreme Court ofNew South Wales, or to any offlces
in the said court, whereof the duties shall eorrespond to those performed
by the Master, Registrar, Prothonotary, or Keeper of Records of any or
either of our Courts of Record at Westminster, shall be so appointed by
us, our heirs, and successors, by warrant under our or their royal sign
manual; and that all persous who shall and may be appointed to any
other office within the said Supremo Court of New South Wales, shall
be so appointed by the ChiefJ ustice for the time being of the said court,
And we do further direct and appoint that the several officers of the
said court so to be appointed as aforesaid by us, our heirs, and succes-
sors, shall hold their respective offices during our and their pleasure ;
and that the several officers of the said court so to be appointed as
aforesaidby the Chief Justicethereof, be subject tobe removed by tbe
said court from their offices therein upon reasonable cause: And we do
hereby authorizeand empower the said Supreme Court of New South
WaIes to approve, adrnit, and enrol such and so many persons having
been admitled barristers at law or advocates, in Great Britain or
Ireland, or having been admitted writers, attornies, 01' solicitors in one
of our courts at Westminster, Dublin, or Edinburgh, or having been
admitted as proctors in any Ecslcsiastical Court in EngIand, to act as
well in the character of Larristers .and advocates, as of proctors, attor-
nies, and solicítors in the said court; and which persol1s, so approved,
adrnitted, and enrol1ed as aforesaid, shall be and are hereby authorized
to appear and plead and act for the suitors of the said court, subject
always to be removed by the said court frorn their station therein, upon
reasonabIe cause; and we do declare that no person or persons what-
soever shall be allowed to appear and pIead, or act in the said Supreme
Court of New South Wales, for aneI on behalf of sueh suitors, or any of
them: Provided always , and we do ordain and declare that in case
there shall not be a suffieient numbcr of such barristers-at-Iaw, advo-
cates, writers, attornies, solicitors, and proctors within (he said colon)",




NEW SOUTH WALE5-CHARTER OF JU5TlCE. 631
competent and willing to appear and act for the suitors of the said
court, then and in that case the said Supreme Court of New South
Wales shall and is hereby authorized to admit so many other fit and
proper persons to appear and aet as harristers, advocates, proctors.at-
tornics, and solieitors, as may be necessary, aeeording to sueh general
rules and qualifieations as tho said eourt shall for that purpose make
nnd establish : Provided, that the said court shall not admit any
person to aet in any or either of the characters aforesaid, who hath been
by due eourse of law convicted of any crime, whieh, according to any
law now in force in England would disqualify him from appearing and
aeting in any of our Courts of Record at Westminster. And we do
hereby ordain and declare that the Governor or acting Govcrnor for the:
¡íme being of the said eolony of New South Wales shall yearly, on the
first Monday in the month of January in each year, by warrant under
his hand and seal, nominate and appoint sorne fit and proper person lo
act as and be the sheriff for our said colony ofNew South Wales and its
dependeneies, other than and except the Island of Van Diemen's Land,
for the year ensuing, whieb sheriff wben appointed shall, as soon as
eonveniently may be, and beforc he shall cntcr upon bis said office,
take an oath faithfully to execute his offiee, and the oath of allegianee,
before the Governor or aeting Governor, who are herebyauthorized to
administer the same; and such sheriff shall eontinue in sueh his offiee
during the spaee of one whole year, to be eomputed from the said firi!(.
Monday in the month of January, and until another shall bo appoinled,'
and sworn into the said offiee; and in case such sheriff sha\l die in his
offiee, or dopart from our said eolony of N ew South Wales, then another
person shall, as soon as convenicntly m~y be after the death or de-
parturc of sueh sheriff, be in like manuer appointed and sworn in as
aforesaid, and shall continuo in his offiee for the remainder of the year,
and until another sheriff shall be duly appointed and sworn into the
said offiee: And we do further order, direet, and appoint that the said
sheriff and his successors shall by thernsclves, or their suffieient deputies
to be by thern appointed and duly authorized under their respective
hands and seals, and for whom he and they shall be responsible during
his or their continuance in such offiee, exeeute, and the said sheriff and
his said deputies are hereby authorized to exeeute all the writs, sum-
monses, rules, orders, warrants, commands, and proeess of the said
Supremo Court of New South Wales, and make return of the same,
togethor with the manner of the exeeution thereof, to the Suprerne
Court of New South Wales, and to receive and detain in prison all such
persons as shall be eommitted to the eustody of sueh sheriff by the
said Supreme Court of New South Wales, or by the ehief justice of the
said COUl't: And we do further authorizo our Governor or acting Go-
vernal' for ¡IJc time !Jeing of fIJe said eolony of Ncw SOlltll TVales, I~




63::4 NEW SOUTH WALES-CHARTER OF JUSTICE.
re-appoi nt the same person to fill the office of sheriff from year to year,
if it shall appear to our said Governor or acting Governor expedient so
to do; so nevertheless as that such appointment shall be annuaUy re-
newed and be not ever made for more than one year: Provided never-
theless, and we do hereby require our said Governor or acting Goveruor
of our said colony, in the selectíon of any person or persons to fill the
said office of Sheriff of New South Wales, to conform himself to such
directions as may from time to.time be given in that helmlfby us, our
heirs, and successors, through one of our or their principal Secretaries of
State : And we do further direct, ordain, and appoint, that whenever the
said Supreme Court ofNew South Wales shall direct or award any process
against the said sheriff', or award any process in any cause, matter, or
thing wherein the said sheriff', on account of his being related to the
parties or any of them, or by reason of any good cause of challenge
which would be allowed against any sheriff in England, cannot or ought
not by law to execute the same, in every such case the said Supreme
Court of New South Wales shall name and appoint sorne other fit per-
son to execute and return the same, and the said process shall he
directed to the person so to be named for that purpose, and the cause
of such special proceedings shall he suggested and entered on the
records of the said court: Provided always, and we do hereby erdain
and declare, that the said Supreme Court of New South Wales shall fix
certain limits beyond which the said sheriff shall not be compelled or
compeUable to go in person, or by his officers or deputies, for the execu-
tion of any process of the said court; and when the process of the said
court shall be to be executed in ,any place or'places beyond the limits
so to be fixed, we grant, ordain, and direct that the said Supreme Court
of New South Wales shall, upon motion, direct by what person or per-
sons, and in what manner such process shall be exeeuted, and the terms
and conditions which the party at whose instance the same shall be
issued shaU enter into, in order to prevent any improper use or ahuse
of the process of the said court, and the said sheriff shall and he is
hereby required to grant his special warrant or deputation to such per-
son or persons as the said court shnll direet for the exeeution of such
proeess; and in that case we direct a~d declare that the said sherilf,
his executor, and administrators, shall not be responsible or liable for
any aet to be done in or in any way respecting the exeeution of such
proeess, under and by virtue of sueh special warrant, and that any per-
son or persons being aggrieved under or by pretenee of such special
warrant, shall and may seek their remedy under any security which
ma)" have been directed to be taken upon the occasíon, and whieh the
said court is hereby authorized to direet lo be taken, And whereas in
the said Act of Parliament it is enacted, that the said courts shall have
cognizance of al! pleas, civil, criminal or mixed, and the jurisdiction of




NEW SOUTH WALES-CHARTER OF JUSTICE. 633
the said courts in all sueh cases is thereby settled and aseertained;
and it is thereby enaeted, that the said courts shall be courts of
ecclesiastical jurisdiction, and sball have full power and authority
to administer and exeeute within New SouthWales and Van Die-
men's Land and the dependeneies thereof, such ecclesiastical juris-
diction and authority as shall be committed to the said Supreme Courts
by our charters or letters-patent: Now we do hereby for us, our heirs
and successors, grant, ordain, -establish and appoint, that tbe said Su-
preme Court of New South Wales shall be a court of ecclesiastical
jurisdiction, with full power to grant prohates, under the seal of the
said court, of the last wills and testaments oí all or any of the 'inhabit-
ants of that part of the said colony and its dependencies ·situate in the
island of New Holland, and of all other persons who shall die and
leave personal effects within that part of the said colony, and to commit
letters of administration under the seal of the said court of the goods,
ehattels, credits, and all other effects whatsoever of the persons afore-
said who shall die intestare, or who shall not have named an executor
resident within that part of the said colony and its dependeneies;
or where the exeeutor being duly cited shall not appear and sue forth
sueh probate, annexing the wil! lo the said letters of administration,
when such persons shall have left a wil! without naming any executor
or any person for execulor, who shall then be alive and residen; within
that part of the said colony and its dependencies, and who being duly
cited thereunto will appear and sue forth a probate thereoC, and to se-
quester the goods and ehattels, credits and other effects whatsoever of
such persons so dying; in cases allowed by law, as the sams is and may
be now used in the diocese of London; and to demand, require, take,
hear, examine, and allow, and, if occasion require,to disallow and
reject, the aeeounts of them in sueh manner and form as is now used or
may be used in the said dioeese of London, and to do all other things
whatsoever needful and necessary in that behalf: Provided always, and
we do hereby authorize and require the said court in such cases as afore-
said, where letters of administration shall be committed with the will
annexed, for want of an executor applying in due time to sue forth the
probate, to reserve in such letters of administration full power and
authority to revoke the same, and to grant proba te of the said wil!
to sneh executor whenever he shall duly appear and sue forth the
same, And we do hereby further authorize and require the said Su-
preme Court of New South Wales to grant and commit such letters
of adrninistration to any one or more of the lawful next of kin of such
person so dying as aforesaid, and being then resident within the juris-
diction of the said court, and being of the age of twenty-one years,
and in case no such person shall then be residing within the jurisdietion
of the said court, or being duly cited shall not appear and pray the




634 NEW SOUTH WALES-CIJARTER OF JUSTICE.
same, to the registrar of the said court, 01' to such person 01' persons,
whether creditor 01' creditors 01' not of the deceased person, as the court
shall see fit: Provided always, that probates of wills and letters of ad-
ministration to be granted by the said court, shall be limited to sueh
money, goods, chattels and effects as the deceased person shall be enti-
tled to within that part of the said colony situate within the island of
New lIolland: and we do hereby further enjoin and rcquire tbat every
person to whom sueh Ietters of administration shall be committecl,
shall before the granting thereof give sufficient seourity by bond, to be
entered iuto to us, our heirs and suecessors, for the payrrrent of a com-
petent sum of money, with one, two 01' more able sureties, respect
being had to {be sum therein to be contained, and in tbe ability of the
sureties, to the value of the estates, credits and cffccts of the deeeased,
whieb bond shaJl be deposited in the said court among the records
thereof and there safely kept, and a copy thereof shall also be recorded
among the proceedings of the said court; and the eondition of the said
bond shall be to the following cffect :-" That if the aboye bounden
administrator of the goods, chattels and efTects of the deceased do
make 01' cause to be made ¡¡ truc and pcrfect inventory of all and sin-
gular the goods, eredits and effects of the said deccascd, which have 01'
shall come to the hands, possession or knowledge ofhim the said admi-
nistrator, 01' to the hands 01' possession of any other person 01' persons
for him; and the same so made do exbibit 01' cause to be exhibited
into the said Supreme Court of New Soutb Wales, at 01' before a. day
therein to be specificd, and tbe sarne goods, chattels, credits and elfects,
and a11 other the gOOd5, chattels, credits and effeets of tbe deceased
at thc time of bis death, 01' which at any time aftorwards shall come to
tbe hands or possession of such admiuistrator, or to the hands 01' pos-
session of any otber person 01' persons for him, shall wel! and truly
administer aeeording to law, and further shall rnake 01' cause to be
rnade a true and just account of [iis said administration at or bcforc
a time therein to be specified, and afterwards from time to time as he,
she 01' they shall be Iawfully required, and a11 the rest. and residue of
tbe said goods, ehattcls, credits and clfeets whieh shall be found from
time to time remaining upon the said administration accounts, the sume
being first examinad and allowed of bythc said Supreme Court of New
South Wales, shall and do payand dispose of in a due course of admi-
nistration, 01' in such manner as tbe said court shall direct, then this
obligation to be void and of none effect, 01' else to be and rernain in
fuU force and virtue ;" and in case it shall be necessary to put the said
bond in suit, for the sake of obtaining the effect thereof for tbe benefit
of such person or persops as shall appear to the said court to he in-
terested thcrcin, such per';6'n or persons from time to time giving satis-
faetoryseeurity for paying al! such costs as "hall arise from the said




NEW SOUTH WALES-CHARTER OF JUSTICE. 635
suit 01' any part thereof, such person 01' persons shall by order of the
said court be allowed to sue the same in the name of the Attorney-
General for the time being of the said colony, and the said bond shall
not be sued in any other manner; and we do hereby authorize and
empower the said court to order that the said bond shall be pnt in suit
in the name of the said Attorney-General. And we do further will,
order and require, that the said court shall affix certain periods when
all persons to whorn probates of wills and letters of administration
shall be granted by the said court, shall from time to time, until the
effects of the- deceased person shall be fully administered, pass their
aecounts relating thereto bcfore the said court ; and in case the effects
of the deceased shall not be fully administered within the time for that
purpose to be fixed by the said court, then, 01' at any earlier time, if
the said court shall see fit so to direet, the person 01' persons to whom
such probate 01' administration shall be granted, shall pay, deposit and
dispose of the balance of money belonging to the estate of the deceased
then in his, ber 01' their hands, and all money whieh shall aftcrwards
come into his, her 01' their hands, and also all precious stones, jewels,
bonds, bilis, and securities belonging to the estate of the deceased, in
such manner and unto such persens as the said court shall direct for
safe custody; and we require that the said court shall from time to time
make such order as shall be just for the dne administration of such assets
and for the payment 01' remittance thereof 01' any part thereof, as occasion
shall require, to 01' for the use of any person 01' persons, whether resident
01' not resident in the said colony and its dependencias, who may be enti-
tled thereto 01' any part thereof as ereditors, legatees 01' next of kin, 01'
by any other right 01' title whatsoever, And we further order and direet,
that it shall be lawful for the said court to allow to any executor 01' ad-
ministrator of the effects of any deeeased person (except as herein men-
tioned) such eommission 01' per centage out of their assets as shall be
just and reasonable for. their pains and tronble therein: Provided
always, that no allowance whatever shall be made for the pains and
trouble of any executor 0\' administrator who shall neglect to pass his
accounts at such time 01' to dispose of any money, goods, chattels 01'
securities with which he shall be chargeable, in such manner as in pur-
suance of any general 01' special rule 01' order of the said court shall be
requisite; and morcover every sueh exeeutor 01' administrator so neg-
leeting to pass his aeeounts, 01' to dispose of any such money, goods,
chattels 01' securities with which he shall be chargeable, shall be charged
with interest at the rate then current within the said eolony and its de-
pendencies for such surn and sums of money as from time to time shall
have been in his hands, whether be shall 01' shall not make interest
thereof, And we do hereby authorize the said Suprema COUl't of New
South Wales lo appoint guardians and kecpers 01' infants and their




636 NEW SOUTH WALES-CHARTER OF JUSTIC1!:.
estates according to the order and course observed in that part of our
United Kingdom called England, and also guardians aud keepers of the
persons and estates of natural fools, and of such as are or shall be de-
prived of their understanding or reason by the act of God, so as to
be unable to govern tbemselves and their estates, which we hereby au-
thorize and empower tbe said court to inquire, hear and determine, by
inspection of the person, or such other ways and means by which the
truth may be best discovered and known. And whereas it is by the
said act enacted, "that it shall and may be lawful for us by our said
eharters or letters-patent respectively to allow any person or persons
feeling aggrieved by any judgment, decree, order or sentence of the
Court of Appeals of the colony of New South Wales, to appeal there-
from to us in our Privy Couneil, in sueh manner, within such time,
and under and subject to sueh rules, regulations and Iimitations as we
by any such eharters or letters-patent respecti vely should appoint and
prescribe: Now we do hereby uirect, establish and ordain, that any
person or persons may appeal to us, our heirs and successors, in our or
their Privy Council in sueh manner, within sueh time, and under and
subject to such rules, regulations and limitations as are hereinafter
mentioned, (that is to say,) in case .any such judgment, decree, order,
or sentence shall be given or pronounced for 01' in respect of any sum
or matter at issue aboye the amount or value of .í2000 sterling, or in
case such judgment, deeree, order, or senlenee shall involve directly
or indireetly any c1aim, demand or question lo or respecling properly
or any civil right, amounting to or of the value of .í2000 sterling,
01' in case the said Court of Appeals should by any such judgment,
decree, order, 01' sentence reverse, alter or vary any judgment, deeree,
order or sentenee of the said Supreme Court of New South Wales, the
person or persons feeling aggrieved by any sueh judgmenl, deeree,
order or sentence of the said Court of Appeals, may, within fourteen
days next after the same shall have been prouounced, made or given,
apply to the said Court of Appeals by petition for leave lo appeal there-
from lo us, our heirs and successors, in our or their Privy Council;
and in case sueh leave lo appeal shall be prayed by the party or parties
who is or are directed to pay any sum of money, or perform any duty,
the said Court of Appeals shall and is hereby empowered either lo
direct that the judgment, decree, order or sentenee appealed from shall
be carried into exeeution, or that the execution thereof shall be sus-
pended pending the said appeal, as to the said court may appear to
be most consistent with real and substantial justiee; and in case the
said Court of Appeal shall direet such judgment, deeree, order or sen-
tence lo be carried into execution, the person or persons in whose la-
vour the sarne shall be given, shall, before the execulion thereof, enler
into good and suffieient security, to be approved by the said Court of




NEW SOUTII WALES-CIIARTER OF JUSTICE. 637
A ppeals, for the due performance of such judgment 01' order as we, our
heirs and successors, shall think fit to make thereupon; 01' in case the
said Court of Appeals shall direet the execution of any sueh judgment,
decree, order 01' sentenee to be suspended pending the appeal, the
person 01' persons against whom the same shall have been given, shall
in like manner and before any order for the suspensión of any such exe-
cution is made, enter into good and suffieient seeurity to the said Court
of Appeals for the due performance of sueh judgment 01' order as we,
our heirs 01' successors, shall think fit to make thereupon; and in all
cases we will and requíre that security shall also be given by the party
01' parties appellant to the satisfaetion of the said Court of Appeals, for
the prosecution of the appeal and for the 'payment of all suchcosts as
may be awarded by us, our heirs and suecessors, to the party 01' parties
respondent; and if such last-mentioned security shall be entered into
within three months from the date of such petition for leave to appeal,
then, and not otherwise, the said Court of A ppeals shall allow the ap-
peal, and the party 01' parties appellant shall be at liberty to prefer and
prosecute his, her 01' their appeal to us, our heirs and successors, in
OUI' 01' their Privy Couneil in sueh manner and under such rules as are
observed in appeals made to us from our plantations 01' colonies: and
we do hereby reserve to ourself, our heirs and successors, in our 01'
their Privy Council, full power and authority, upon the humble petition,
at any time, of any person 01' persons aggrieved by any judgment 01' de-
termination of the said Court of Appeals, to refuse 01' admit his, her 01'
their appeal therefrom, upon such terms and upon sueh limitatíons, re-
strietions and regulations as we 01' they shall think fit, and to reverse,
correct 01' vary such judgment 01' determinalion as to us 01' thernshall
seem meet: and it is our further will and pleasure, that in all cases of
appeal alJowed by the said Court of Appeals, 01' by us, our heirs 01'
successors, the said Court of Appeals shall certify and transmit to us,
our heirs 01' suecessors, in our 01' their Privy Council, a trne and exact
copy of all evidence, proceedings, judgments, decrees and orders had
01' made in such causes appealed from, so far as the same have relation
to the matter of appeal, sueh copies to be certified under the seal of the
said court. And we do furtber direct and ordain, that the said Su-
preme Court of New South Wales shall in all cases of appeal to us, our
heirs 01' successors, conform to and execute, or cause to be exeeuted,
sueh judgments and orders as we shall think fit to make in the pre·
mises, in sueh manner as any original judgment, decree, 01' decretal
order, 01' other order 01' rule by the said Suprema Court of New South
Wales, should 01' might have been executed: and we do hereby strietly
charge and command all governors, commanders, magistrates, minis-
ters, civil and military, and all our liege subjects within and belonging
to the said colony, that in the execution of the several powers, jurisdie-




638 NEW SOUTH WALES-CHARTEIt OF JUSTICE.
tions and authorities hereby granted, made, given or created, tl\l~y be
aiding and assisting, and obedient in all things, as they will answer
the contrary at their peril: Provided always, that nothing in these
presents contained, or any act which shall be done under the autho-
rity thereof, sball extend or be construed to extend to prevent us, our
heirs and successors, to repeal these presents or any part thereof,
or to make such further or other provision by Ietters-patent for the
administration óf justice, civil and criminal, within the said colony
and the places now or at any time hereafter to be annexed thereto, as lo
us, our heirs and successors, shall seern fit, in as full and ample a roan-
ner as if these presents had not becn roade, these presents or anything
herein contained to the contrary thereof in anywise notwithstanding.
In witness, &e., the 13th day of October,


By Writ of Privy Seal.


Examinad with the Record in the Petty Bag Offiee in the Court of
Chancery, the 22d day of April, 1834.


J. BENTALL.




G30


VAN DIEMEN'S LAND.


-


VAN DIEMEN'S LAND, or Tasmania, as the settlers call it,
is an island situated between the parallels of 40° and 44°
south latitudc, and 144° and 149° cast longitude. In ex-
tent from north to south it is about :210 miles, and from
east to west about 150, containing a superficies of nearly
:23,437 square miles, or 14,999,680 square acres, only
one-half of which is supposed to be capable of being
brought into cultivation,but at present not aboye 60,000
acres (1) have been subjected to the plough. It is
bounded by the ocean on three sities, and on the fou;th
by a channeJ, called Bass' Straits, which separatas it from
New Holland, and in which there are several sinall
islands, The climate is fine and saluhrious, the extremes
of heat and cold being unknown. The principal towns
are Hobart Town, frequently called Hobarton, and Laun-
ceston, both of which are free warehousing ports. The
chief articles exported are bark for tanning, oil, train
and sperm, timber, whale fins, shecps' wool, skins, coro,
and potatoes.


IlISTORY.


Tasman, the Dutch navigatar, discovered this island
in 164~, and caBcd it Van Diemen's Land, in honour of
the then Governor-Gcncral of the Dutch East Indies,
From that time down to 1773, when Captain Cook an-
chored there, only two 01' three navigators had visited it,
and they all supposed it to be part of New Holland.


Mr. Bass, a slll'geon in the royal navy, discovered, in
an expedition that he undertook in an open boat, the
channcl called Bass' Straits, and Captain Flinders and
]\fr. Bass subsequently, in 1798, sailed through the strait


(1) I'arker's VilU Diemen's Land, p. 123.




64·0 VAl' DIEMEN's LAND.
and round the island in a small decked sloop. This ex-
pedition satisfactorily determined the geographical posi-
tion of the country.


In 1803 the first settlement was formed on the banks of
the Derwent, and was called Risdon. The persons who
founded .it were a small detachment of soldiers, under the
command of Lieutenant Bowen, and aparty of convicts,
persons who had been transporte d from England to New
South Wales, and had there committed crimcs, for which
they were to be punished by being sent to a penal settlc-
ment of a lower grade. In 180:1< Lieutenant-Governor
Collins, who had recently left England with a consider-
able party, haviug in view the formation of a settlement
at Port Phillip, on the southern coast of New Holland,
and had altered his destination, after ascertaining tbe un-
fitness of that port for bis ohject, arrived in the Derwent,
and took the command. Shortly after he had taken upon
himself the administration of affáirs, he removed the set-
tlers from Risdon to the present site of Hobart Town,
which is now the seat of government, In the same year
a settlement was also effected by Colone! Patterson at
Port Dalrymple, and then the island was divided into two
counties, Buckinghamshire and Cornwall. Until1813 no
vessels were allowed to enter the harbours or ports, as
the' settlement was only considered a place of punishment
for the re-convícted felons of the colony at New South
Walps. It was about this period that the offence of
bush-ranging first became prevalent, and it afterwards
grew to such an alarming height, that it was not until
military law was declared and put in force that it was
suppressed.


Previous to the year 1816 no civil court was held, hut
in the month of January in that year the Lieutenant-Go-
vernor's Court, composed of a judge-advocate (2) and
two inhabitants of the settlement, was opened for the
trial of civil causes, not exceeding in amount the sum of
.f50: suits for a larger amount were, as all actions be-
fore had been, instituted in the Supreme Court at Syd-
ney; and it was in consequence oi: the increasing number
and importance of those suits that the Judge of the Su-
preme Court in January, 1819, went to Hobart Town


(2) The Judge-Advocate admitted
persons to practise in this court who


had not received a legal education,
and thcse were called practitioners,


i




VAN DIEMEN'S LAND. 641
and there held a sitting. The next sitting was held in
the year 1821, and the Judge of the Supreme Court was
then accompanied by the Judge-advocate, who, for the
first time, opened a criminal court,


Up to that period all offences committed by con-
victs, excepting murder, had been punished by a bench
of magistrates, at monthly meetings, held at Hobart
Town, hut the punishments the bench inflicted we~ ne-
cessarily often too lenient; for heinous offences trans-
portation to the Coal River for three and five years, with
condemnation to work there in chains, was the usual
sentence, and for lesser crimes flogging, to the amount oí
300 lashes. The investigation of offences committed by
free people WaS referred to the Criminal Court at Sydney;
and such was the reluctance of the settlers to quit their
property to carry on prosecutious, and to incur the ex-
pense, trouble and delay necessarily attendant upon a
long voyáge, that compromises of crimes oí the blackest
kind were frequently effected.


In the year 1819 the attention of emigrants was called
to the advantages the island presented, and since that
time the tide oí emigration has set in so very steadily to
its shores, that the population, which then did not amount
to 6000 souls, now exceeds 35,000.(3)


The 4 Geo. 4, c.96, placed the colony in a much higher
situation than it had previously stood; it established a
court of justice having criminal, civil, equitable, and, to
a certain extent, ecclesiastical jurisdiction, called "The
Supreme Court of Van Diemen's Land." This court was
also authorized to proceed by process oí foreign attach-
ment against the effects oí debtors absent from the co-
lony, and to declare insolvencies, and to distribute the
effects oí insolvent persons in Van Diemen's Land,
Courts oí Quarter Sessions and Courts oí Requests were
also instituted by the powers given to the Governor by
the same acto


In the year 1825 a proclamation was issued, declaring
Van Diemen's Land to be independent oí New South
Wales, and thereupon the Lieutenant-Governor assumed
the powers oí Governor, and an Executive Council, con-


(3) The population consisted, as were free persons, and 3939 were con-
taken at the general muster or census victs, Wentworth, 2d ed. p.55.
in 1821, of 7185 souls, of whom3246


TT




64Q VAN DIEMEN'S LAND.
sisting of the Lieutenant-Governor, Chief Justice, Colo-
nial Secretary, Colonial Treasurer, and the principal
(acting) military officer was appointed; and a Legislative
Couneil, eonsisting of seven persons nominated by His
Majesty, was ealled together for the purpose of making
Jaws for the government of the colony.


The9 Geo, 4, c. 83, relates to this island as well as to
New. South Wales, and therefore the civil and judicial
establishments do not differ in any material degree from
those of the parent-colony.


CIVIL GOVERNMENT.


The officer who controls the affairs of this colony is
only a Lieutenant-Governor, but he has all the authority
of a governor when the Governor of N ew South Wales,
who is the Captain-General and Governor-in-Chief of
Van Diemen's Land, (4,) is not present in the island.


The Lieutenant-Governor is the head of the Exeeu-
tive Couneil, and he is required to consult with the mem-
bers upon all matters of moment, but he is not bound to
adopt the opinions the majority express ¡ though, should
he differ from them, and aet contrary to their advice, he
must transmit his reasons for having so acted to the Se-
cretary of State for the colonies. The Executive Couneil
consists at present of the Lieutenant-Governor, the Chief
Justice, the Colonial Seeretary, the Colonial Treasurer,
and Lieutenant-Colonel Legan, (5)


The Legislativa Couneil eonsists of not more than fif-
teen members, nor less than ten, appointed by the King's
warrant, Several of the members, such as the Chief Jus-
tice, Colonial Chaplain, Attorney-General, Treasurer,
and Seeretary are members ex qfftcio. The duties of the
Legislative Couneil, (6) as well as the mode enjoined of
conducting business, are these :-


1. The members are to make laws and ordinances for
the peace, welfare, and good government of the eolony,


(4) See ante, p. 606 and note (6).
(5) This gentleman is the senior


officer of the military force stationed
in the island, but as the 63d regi-
ment, of which he is eolonel, is
about to be removed, it is probable


that his sueeessor wilI be the eolonel
of the next regiment which shall be
sent there, This is usually the case
in other colonies,


(6) Van Diemen's Land Alma.
mack for 1833, p. 66.




VAN DIEMJm'S LAND. 643
such laws not being repugnant to the laws of England. (7)
No law shall be passed, unless the same shaIl first be laid
by the Governor before the Council, nor unless notice of
the general objects of it shall have been sent by the Go-
vernor to one 01' more of the newspapers for insertion,
eight clear days at least before such law shall be passed,
01' unless, in case there be no newspapers, such notice
shall be given by sorne mode of public advertisement; (8)
except when the Governor shall consider that actual
danger will arise from the delay of eight days, in which
case the bill may be passed on the emergency into a law.
The Council is not eompetent to act unless two-thirds of
the members, exclusive of the Governor 01' presiding
member, be present; and if a majority of the members
present dissent from any bill brought in by the Governor,
they may enter the grounds of their dissent against the
bill on the minutes of the Council, and then it eannot be-
come a law. In case the Governor, on the request of any
member, shall refuse to lay any bill 01' proposal for a law
befare the Council, he shall, on a similar roquest, lay be-
fore the Couneil a copy of his refusal, with a copy of the
bill so refused recited verbatim; and any member disap-
proving of such refusal, may enter llpon the minutes the
grounds of his disapprobation.


2. Every law shall be transmitted, within seven days
from the day it is passed through the Legislative Council,
to the Supreme Court to be enroIled, and after fourteen
days from the date of such enrolment it comes into opera-
tion, unless the judges of the Supreme Court shall repre-
sent to the Governor that such Iaw is repugnant to the
9 Geo. 11, c. 83, to the Iaws of England, to charters 01' to
letters-patent , the Governor shall then suspend such
law until he has brought it, together with the representa-
tion, under the review of the Council; and if upon such
review the Governor and Council cannot see the force of
the judge's representation, and sha11 adhere to the pro-
posed law, a written notice of such resolution shall be
transmitted by the Governor to the judges, and such law
shaIl take effect and be binding until Bis Majesty's plea-
sure be known, any repugnancy 01' supposed repugnancy
notwithstanding. (9)


(7) 9 Geo. 4, c. 83, s. 20 and 21.
(8) Seel.21.
(9) A dilference of opinion as to


the repllgnancy of a law exists al the
present lime in Van Diemen's Land,
thejndges having represented the 61st


TT2




644 VAN DlEMEN'S LAND.
3. The Governor shaU preside and vote at the sittings


of the CounciJ, and when the votes are equally divided,
he shall have an additional 01' casting vote.


4. The laws of England, as far as they can be applied,
shall be recognized in the administration of justice; and
when a doubt arises, the Governor and Council shall de-
cide whether or not any statute extends to the colony,
and shall make such limitations and modifications as may
be deemed expedíent. (I)


5. The Governor and Council shall not impose taxes
but for local ptV'poses. (Q)


6. Every law passed by the Council must be trans-
mitted by the Governor, within six months from the time
of its passing, to one of His Majesty's Principal Secre-
taries of State, (3)


7. Alllaws made in the colony, and all orders by His


section of "An Act for regulaling the
police in the town and ports of Hobart
Town and Launceston, and for re-
moving and preventing nuisances and
obstructions therein," to be repugnant
to the law of EngIand, in so far as it
renders liable to apprehension and
detention in a watch-house any ma-
riners, however peaceable and 01'-
derly, who may be found in a public-
house, 01' in a street, 01' public place
after the hour of nine at night and
before sun-rise, 'I'he judgcs in their
opinion stated, "that an enactment
restrictiva of the liberty which the
law of England allows lo the subject,
or which deprives him of those snfe-
guards for his liberty which tha Iaw
itself has prol ided, and which it care-
fully maintains, mnst be _held lo be
repugnant to the Iaw itself, unlsss
called for by sorne necessity 01' expe-
diency." The Governor placed the
representations of the judges before
the Council, but recommended the
mernbers to adhere lo the law, ob-
serving that he should be able to show
them that it was expediento " The
discipline of the convicts,' he says,
"requires that they should, as much
as possible, be deterred from ever even
attempting to escape frorn the terri-
tory, which of course can only be
accomplished by water; and it is mat-
ter of fact, of which 1 havc been


assured by the Police l\fagistrate, that
these men, when endeavouring to get
on board of vessels for the purpose of
concealment, are generally dressed as
mariners ; it is therefore most import-
ant that the constables should always
be enabIed lo distinguish between
sailors and convicts in disguise as
such,'


Captain Forster, the Chief Police
Magistrate, says, .. 1 was glad to find
the clause in the bill, knowing that
similm' resi.-ietions to those imposed by
the said section are in force in Eu-
rape." With due deference to Colo-
nel Arthur and lo Captain Forster,
the case of eJpedieneyis one for an
enactruent against the convicts, and
not against the sailors, The know-
ledge if similar ,-estrietions may refer
to the Península or perbaps Franca,
where probably the gallant Captain
serverl during the wars, but not to
Great Britain or Irelaud. The Cap-
tain may, however, have mislaken
the regulations of a garrison for an
act of parliament, for there can be
no doubt that any person or any par-
ticular class of persons may be ex-
cluded from a garrison at any hour
either of the day or night, This how-
ever would nol justify the enactment,


(1) 9 Geo. 4, C. 83, s. 24.
(2) Sect. 25.
(3) Sect.28.




VAN DIEMEN'S LAND. 645
Majesty in pursuanee of the 9 Geo. 4, c. 83, shall be
laid before both Houses of Parliament within six wecks
after the commeneement of eaeh session, (4,)


8. The members of the Couneil are justices of the
peace by virtue of their office, and take the fol1owing
oath, viz, :_H I do swear that I will, to the best of my
judgment and ability, faithfully advise and assist the Go-
vernor of the Colony of Van Diemen's Land and its
dependencies in all such matters as shall be brought
under my consideration as member of the Couneil of the
said colony. So help me God." (5)


9. In the case of death 01' resignatíon of a member of
Council, the Governor may appoint some person to act in
his stead until His Majesty's pleasure be known. (6)


The Governor and Council are empowered to raise
a revenue by taxation, but the particular local object to
which the money to be raised by every impost is to be
applied, must be speeified by the aet of the Council di-
reeting it to be levied. (7)


COURTS.


The Supremo Court,
The 4 Geo. 4., c. 96, was the first act of parliament


authorizing His Majesty to issue letters-patent instituting
a Supreme Court in Van Diemen's Land, and under the
authority of that act a oharter of justiee passed the
great seal, bearing date 13th Oetober, 1823; it became
neeessary, howevcr, after Van Diemen's Land was de-
cIared an indcpendent colony, and after the 9 Geo. 4,


(4) 9 Geo.4, c. 83, s, 29.
(5) Sect.30.
(6) Sect. 31.
(7) Sect. 25. The next section


makes perpetual the 59 Geo. 3, c. 114,
and the 3 Geo, 4, c. 96, authorizing
the imposition of duties upon importa-
tion, not exceeding 105. a gallon on
spirits, the produce and manufacture
of the United Kingdom or the British
West 1ndies ; not exceeding 15s. a
gallon on all other spirits; not ex-
cecding 4s. per lb. on tobacco, and
not exceeding J:Uj per cent. on goods,
wares and merchandise, not being the
growth, produce 01' manufacture of


the United Kingdom. These duties
are not exaclfd to the full extent, as
the subjoined aecount of the duties
now levied will show :-on brandy,
per gallon, lOs.; HoJlands or Gcneva,
lOs.; on rum, the produce of the
Wesl lndian colonies, 75. sz, on
British gin, 75. 6d.; and tcbacco per
lb. 15. 6d.; on al! merchandise of fo-
reign produce or manufacture, an ad
valorem duty of i5 per cent. on im-
portation, with the exception of wine,
which is subjected to a duty 01 il5
pcr cent, Goods of British manu-
facture are not liable to any duty.




646


•


VAN DIEMEN'S LAND.


c.83, came into operation, that a new charter should
issue, and accordingly on the :t'th March, 1831, a chartel'
of justice, adapted to the new condition of the colony,
was published.


The Supreme Court is presided over by two judges,
who must be barristers of five years' standing.(8) Its ju-
risdiction is as extensive within the colony and its de-
pendencies as that of the Courts of King's Bench, Com-
mon PIeas, and Exchequer in England; and it has besides
the power to proceed by foreign attachment in certain
cases where the sheriff has returned non est inventus. (9)
Issues of fact aJ;e triable before one of the judges and
two assessors, magistrates of the colony, appointed to this
duty by the Governor. The assessors are Hable to be
challenged on behalf of either plaintiff or defendant, but
reasons for challenge are to be assigned, and the judge is
to determine whether they are sufficient. If the asses-
sors do not agree on a verdict, thc judge has the casting
vote. Parties are not entirely precluded, however, from
having their cause tried befare a jury, as the court, on the
application of either plaintiff 01' defendant, may order a
jury to be summoned.


This court is also a criminal court for the trial of trea-
sons, murders, felonies and misdemeanours committed
within the island and its dependencies, as also within the
jurisdiction of the Vice-Admiral, and for the trial of·
offences, committed by British subjects belonging to Bri-
tish ships, in the islands of Otahaite, New Zealand, and
in those of the Indian and Pacific Oceans. (1) Criminal
offences are prosecuted by information at the instanee
and in the name of the Attorney-General of the colony,
and are tried by seven military or naval officers as a jury j
but if seven officers cannot be obtained, the number may
be completed with magistrates. (Z) The 10th section of
the 9 Geo. 4, c. 83, authorizes the King to extend and
apply the form of proceeding by grand and petit juries.


An aet of the Legislative Council vpassed in the early
part of this year (1834), has given the Judges of the
Supreme Court the power to declare insolvencies, andto
distribute the effects of insolvents.


(8) 9 Geo. 4, c.83, s, 16, allows
tbe judges to make rules of practice,
but there are no copies of these rules
in England.


(9) 4 Geo.4, c.96, s.s,
(1) Sce ante, p. 610 and note (6).
(2) Sce ante, p. 621.




VAN DlEMEN'S LAND. 641
This court also possesses equitable and ecclesiastical


jurisdiction of the same extent as the Supreme Court of
New South Wales.(3) ,


An appeal from the decision of this court is not to the
Governor, as in the instanee of the Supreme Court of
N ew South Wales, but direet to the King in Couneil; it
lies in cases where any judgment, deeree, order, 01' sen-
tence shall be given 01' pronounced for 01' in respect oí
any sum 01' matter at issue above the amount 01' value oí
.i'1000 sterling, 01' shall involve directly 01' indirectly any
claim, demand 01' question to 01' respecting property 01'
any civil right amounting to 01' of the value of <ClOOO.(4)


Circuit Courts.
'I'hesc courts have been instituted by an Order in


Couneil, issued pursuant to the provisions of the 9 Geo. 4,
c. 8, s, 13. They are Courts of Oyer and Terminer and
Gaol Delivery, and of assize and nisi prius. Sittings are
oecasionally held at Launceston by one of the judges of
the Supreme Court,


Courts of Quarter Sessions,
These courts derive their authority from an act of the


Legislative Council passed in the year 1830. They
form courts of appeal from decisions of magistrates in
certain cases, and are empowered to try all offenees not
punishable with death. (5) They also have special juris-


(3) Sce ante, pp. 608, 611, and
the chárter of justice, post, 653. This
colony i. within the diocese of Cal.
culta and arehdeaeonry of New South
Wales. A Rural Dean has lately
becn appointed to reside in the co-
lany, but he has not power to hoId
courts, or any speeial delegation such
as -was farmerly committed to rural
deans.s-See Burn's Ecclesiastical Law,
title Deans aud Chapter ; Gibs, 971 ;
1 Warner's Eccle, Hist. 275. Tbe
office of the Rural Dean of Van Die-
men's Land appears to be limited to
the inspection of the lives aud man-
ners of the clergy and people within
his district, In the Provincial Synod
of Convoeation held at London, Apri!


3, 1571, it was osdained, that "the
archdeacon, when he hath finished his
visitation, shall signify to the bishop
what clergymen he hath found in
every deanery so well endowed with
learning and judgment as to be wor-
thy to instruet the pcople in sermona,
and to rule and preside over others:
out of these the bishop may choose
such as he will haveto be rural deans."
Kenw. 652,653; Gods. App. 7. In
England little remains of this dignity.


(4) Tbe mode of proeeeding on al"
peal resembles that of other colonies,
and is stated at length in the chárter
of j ustice, for which seo post, 653.


(5) See 9 Geo. 4, c. 83, s, 17¡




648 VAN DIEMEN'S LAND.
diction givcn to them by 6 Geo.4, c. 69, in offences com-
mitted by convicts. (6)


Courts of Requests.
There are seven Courts of Request for the recovery of


debts not exceeding .i'1O. They are constituted by the
Lieutenant-Governor, who is-authorized by an act of the
Legislative.Council to appoint one court for eaeh of the
several police districts into whieh the loeated part of the
colony is divided.(7)


The Attorney-General.
This officer is invested with the power of a grand jury,


as it is to him that bilIs, 01' rather informations, are pre-
sented, and he either rejects 01' finds them. AH prasecu-
tions are carried on as informations at his instance.


Barrlsters and Attornies.
The Judges of the Supreme Court are empowered to


admit persons, being barristers 01' advocates in Great Bri-
tain 01' Ireland, 01' being writers, attornies 01' solicitors in
one of the Courts at Westminster, Dublin 01' Edinburgh,
01' being proctors in any ecclesiastical court in England,
to act as well in thc eharacter of barristers and advocates
as of proctors, attornies and solicitors, (8)


LAWS. (9)
The laws of England are recognized, as far as the cir-


cumstances of the colony will allow, by the judges of their
various courts, and w hen a question arises as to the
applicability of any act of parliament, the Lieutenant-
Governor and Legislative Council decide it, if it can be
referred to them ; but if not, the judge determines whe-
ther 01' not the circumstanees of the colony will admit of
its introduction.


The princi~al aets ofthe Imperial Parliament(l) speci-
(6) See ante, p.624.
(7) See 9 Geo.4, c. 83, s, 18.
(8) See ante, p. 622, note(3).
(9) See ante, p. 3 to 16, on the


topic how far the colonies are subject


to the law of the mother-country.
(J) Acts relating to our colonial


possessions generally, are referred to
in the summary, ante.




VAN DIEMEN'S LAND. 649
fically relating to this colony and its dependencies, and
now in force, are the 54 Geo, 3, c. 15; 4 Geo. 4" C, 96;
5 Geo. 4, c.84; 6 Geo. 4, c.69; 9 Geo. 4, c. 83; and 2 &
3 Wm. 4, c.69. The most important provisions of these
acts will be found in the chapter upon New South Wales,
p. 622, et seq. Both colonies stand in precisely the same
situation to England, being crown colonies, and places to
which convicts may be transported.


ACTS OF THE COLONIAL LEGISLATIVE COUNCIL.


There are very few Acts of the Legislative Council
worthy of remark, as most of them only relate to matters
of excise and police, whilst there are others bringing into
operation Acts of the British Legislature which would
have effect there without any such introduction, as, for
instance, the Roman Catholic Relief Bill.


Registration qf Deeds.-The most important Act of
the Legislative Council is that for the Registration of
Deeds, &c. affectíng lands, tenements, and hereditaments;
it was passed in the year 1827, (8 Geo. 4, No. 5,) and is
avowedly framed upon the principies of the Act for the
Registration of Deeds, &c. in the county of Middlesex.


Section 1 enacts that from and after the 1st N ovember,
1827, an office shall be established for receiving memo-
rials of registration of all conveyances and other deeds,
wills, and devises, and other instruments in writing then
01' afterwards made 01' executed, and aH judgments then
subsisting and unsatisfied, 01' afterwards obtained, by
which lands, tenements, 01' hereditaments within the co-
lony 01' its dependencies shall 01' may be a~ected.


2. Deeds, &c. registered in pursuance of and in con-
formity with the provisions of this act, to be entitled to
and be allowed to have priority over other instruments,
and all conveyances, &c., not re~istered, shall be deemed
to be null and void against bona fide purchasers 01' mort-
gagees.-" Provided that nothing herein contained shall
extend to 01' affect boná fide leases at rack-rent for any
term not exceeding fourteoo years.'


3. Conveyanccs, &c. (except wills) ifmade in Van Die-
men's Land 01' its dependencies, to be registered within
one month; if made in New South 'Vales 01' its depen-
dencies, to be registered within three months; if made in
any other place, within twelve months. WilIs to be re-




650 VAN DIEMEN'S LAND.
gistered within one month after the death of the testator,
if he shall die in Van Diemen's Land 01' its dependencies ;
within three months, if he shaH die in N ew South Wales
01' its dependencies; within twelve months, if he shall die
in any other place. Judgments to be registered within
one month after the signing or recording thereof. " AH
instruments shall be entitled to priority, and shall take
effect respectively, by relation to the date thereof only,
and shall have and be allowed the same force and effect
in all respects as the same would have 01' be entitled to in
case this act had never been made, anything hereín con-
tained to the contrary notwithstanding."


4. This section prescribes the course to be pursued in
registering deeds, &c. "A memorial thereof shall be
written on parchment and delivered into the said office, so
to be established, signed (in cases of deeds, conveyances,
and other instruments, except wills,) by some one of the
parties to the original deed or instrument; and (in case of
wills and devises) signcd by sorne one of the devisees, (2) or
his, her, 01' their guardians 01' trustees; and (in case ofjudg-
ments) signed by the plaintiffs 01' plaintiff, or his, her, or
their authorized agent ; and every such memorial shall be
verified by the oath of sorne competent person that the
same contains a just and true account of the several par-
ticulars therein set forth, which oath shall. be made and
taken before any Judge or Master in Chancery, or before
the Registrar of Deeds so to be appointed, who is hereby
authorized and empowered to administer the same."


5. Every memorial of any judgment to contain the fol-
lowing particulars:-The names and additions of the plain-
tiffs and defendantsrespectively; the sums therebyreceived
or secured; the time of the signing 01' entering up of the
same, and the sum of money 60ná fide due thereon; and
every memorial of any deed 01' conveyance, will, or other
instrument, and the particular nature and object thereof,
the names and additions of all the parties to such deed,
&c., and of the devisor and devisee 01' devisees of such
will, and the names and additions of all the witncsses
thereto, and shall especially particularize and express the
lands, tenemcnts, and hereditaments affccted or intended
to be affected by such deeds, conveyances, will, or instru-


(2) If a testator dying in Van Die-
men's Land should devise his property
to persons in England, it would be


irnpossible for the dcvisees to cornply
with tbe provisions of this act,




VAN DlEMEN'S LAND. 651
ment, and the pl'oper and ordinary 01' accustomed names
of the districts, towns, 01' places where the same Iands,
tenements, and hereditaments shall be situate, and (except
in case of wills) the pecuniary 01' other consideration for
the same, and to whom 01' how paid, in the form 01' to the
effect 01' the form set forth in the schedule hereto an-
nexed, marked A. Provided always, that where there
shall be more writings than one, for perfecting the same
conveyance, devise, 01' security affecting the same Iands,
tenements, and hereditaments, all such writings shall be
stated in one and the same memorial, in which memorial
it shall be sufficient to particularize such Iands, tenements,
and hereditaments once only.


6. The registrar shall give a receipt for the memorial,
specifying the day and time when received, and shall in-
dorse on the back of the memorial the day and time when
received and the name and abode of the person verifying
the same, and such indorsement shall be evidence of the
registration,


7. The books of registration shall be open to inspec-
tion.


8. Whim mortgagcs 01' judgments shall be paid 01' sa-
tisfied, the registrar shall make entry thereof on receiving
a certificate signed by the respective mortgagors 01' mort-
gagees, or plaintiffs and defendants.


9. Sorne competent person must depose that the certi-
ficate contains a correct account.


10. Wills may be deposited with the registrar for safe
custody, and on the decease of the testator shall be opened
by the registrar and delivered to the executor.


11. If any clerk in the registrar's office shall alter any
document with the view of faIsifying it, he shall be guilty
of felony.
1~. Certain fees to be taken by the registrar.


SCHEDULE A.-1. Date of will 01' instrument. ~.N ature
and object thereof. 3. Names and additions of the par-
ties 01' devisors. 4,. N ames and additions of the witnesses
thereto. 5. Description of the lands 01' property affected.
6. Name of the district or place where situate, 7. Con-
sideration, and to whom and how paid. 8. Any other
particulars that the case may require,


Quat·ter Sessions Act.-An Act entitled the Quarter




652 VAN DIEMEN'S LAND.
Sessions Act, passed in the year 1830, introduced Courts
of Qual'ter Sessions, having jurisdiction of equal extent to
the Courts of Qual'ter Sessions in EngIand.


Court of Requests Act.-The act called the Court of
Requests Act, passed in 1830, empowered the Lieutenant-
Governor to appoint Courts of Request for the severaI
poIice districts.


Jury Act.-The Jury Act, passed in 1830, prescribes
the course to be adopted in sumrnoning juries, which the
9 Geo. 4, c. 83, s. 8, has partially allowed to be introduced
in the triaI of issues of fact,


Usury Laws.-The act called the Usury Laws Act,
passed in 1830, is a curious aet, as it declares what is not
to be the Iaw, viz. that the usury Iaws of EngIand shall not
extend to this colony, (3)


Administration of Justice Act.-An act with this titIe,
passed in 1831, is one of a stilI more remarkabIe charac-
ter, as it is not only repugnant hut in direct opposition to
that part of the Charter of Justice appointing a Puisne
Judge. The horne governrnent have however rernedied
the objection by norninating another judge,


Insoloent Debtors' Act.-This act was passed in the
rnonth of February, 1834, and ernpowers the judges of
the Supreme Court to declare insolvencíes, and to au-,
thorize the colleetion and distribution of insolvents' es-
tates.


Parisb Register Act.-This act, passed by the Legis-
lative Council of N ew South "\Vales previous to this set-
tIernent being declared an independent colony, is conti-
nued in force here by an act of the Council. (4)


(3) See ante, p. 91. (4) FOI this act see ante, p. 625.




( 653 )


VAN DIEMEN'S LAND-CHARTER OF JUSTICE.


4th March, 1831.


Eetract from Patents o[ the First Year if the Reign if King
William the Fourth,


WILLIAM the Fourth, by the Crace of Cod, of the United Kingdom of
Great Britain and Ireland King, Defender of the Faith, To all to whom
these presents shall come, greeting: Whereas by an act passed in the
fourth year of the reign of our royal brother and predecessor, his late
Majesty King Ceorge the Fourth, intituled "An Act to provide until
the first day of July, 1827, and until the end of the next session of
parliament, for the better administration of justice in New South Wales
and Van Diemen's Land, and for the more effectual government thereof,
and for other purposes relating thereto," it was amongst other things
enacted, that it should be lawful for his said late Majesty, his heirs and
successors, by charters or letters-patent under the great seal of the
United Kingdom of Great Britain and Ireland, to ereet and establish
eourts of judicature in New South Wales and Van Diemen's Land
respeetively, which should be styled "The Supreme Court of New
South Wales," and "The Supreme Court of Van Diemen's Land:"
and whereas by letters-patent under the great seal of the United King-
dom aforesaid, bearing date at Westminster on the 13th day of October
in the year aforesaid, his said late Majesty, in pursuance and by virtue
of the said act of par!iament, did grant, direet, ordain and appoint,
that there should be within that part of the colony of New South Wales
called Van Diemen's Land a court, which should be called "The Su-
preme Court of Van Diemen's Land ." And whereas by a eertain other
aet of par!iament passed in the ninth year of the reign of his said late
Majesty, intituled "An Aet to provide for the administration of justice
in New South Wales and Van Díemen's Land, and for the more effec-
tual government thereof, and for other purposes relating thereto," it
was enacted, that it should be lawful for his said late Majesty, his heirs
and successors, by eharters or letters-patent under the great seal of the
United Kingdom of Creat Britain and Ireland, to erect and establish
courts of judieature in New South Wales and Van Diemen's Land re-
speetively, whieh should be styled "The Supreme Court oC New South
Wales," and "The Supreme Court of Van Diemen's Land," and that
eaeh of such courts respectively should be holden by one or more judge




654 VAN DIEMEN'S LAND-CHARTER OF JUSTICE.
01' judges, not exceeding three, and should have such ministerial 01'
other officers as should be necessary for the administration of justice in
the said courts respectively, and for the exeeution of the judgments,
decrees, orders and proeess thereof; and that the said judges should from
time to time be appointed by his said late Majesty, his heirs and sueees-
sors ; and that the said ministerial and other officers of the said courts
respeetively should from time to time be appointed to and removed
from their respective offices in such manner as his said late Majesty,
his heirs and successors, should by sueh charters 01' letters-patent as
aforesaid direct: and it was thereby fnrther enacted, that until his said
late Majesty should cause such charters 01' letters-patent to be issued
as aforesaid, the Supreme Courts of New South 'Vales and Van Die-
men's Land respeetively, instituted by his said late Majesty's letters-
patent under the great seal, bearing date respeetively the 13th day of
Oetober, in the fourth year of his said late Majesty's reign, should re-
tain and exercise the several jurisdictions and powers in such eourts
vested by his said late Majesty's said last-mentioned letters-patent, so far
as the same might not be altered by that act, as fullyand effectuallyas if
such courts respecti vely had been instituted in virtue and in pursuance
of the said act: And it was thereby enacted, that the said Ietters-patent
and all orders, acts, matters and things made and done in pursuanee of
the powers and auth~rities vested in his said late Majesty in and by the
said act passed in the fourth year of the reign of his said late Majesty
should be of the same force and effect as if the same han respectively
been issued, made, done and performed by virtue and' in pursuance of
the said aet of the ninth year of his said late Majesty's reign: Now
know ye, that we upon full consideration of the premises, and of our
especial graee, certain knowledge and mere rnotion, have, in pursuance
of the said act of parliament of the ninth year of the reign of bis said
late Majesty, tbought lit to grant, direct, ordain and appoint, and by tbese
presents do aecordingly for us, our heirs and successors, grant, direct,
ordain and appoint, that there shall be witbin our eolony of Van Die-
men's Land a court, wbich shall be called "Tbe Supreme Court of Van
Diemen's Land ;" and we do hereby create, direct and constitute the said
Supreme Court of Van Diemen's Land to be a court of record; and
we do further will, ordain and appoint, that the said Supreme Court
of Van Diemen's Land shall consist of and be holden by and before
two judges, of whorn one shall be and be called the Chief Justice of the
Supreme Court of Van Diemen's Land, and the other shall be and be
called the Puisne Judge of the Supreme Court of Van Diemen's Land;
and such judges shall respectively be barristers in England 01' Ireland
of not less than five years standing, to be named and appointed from
time to time by us, our heirs and successors, by Ietters-patent undcr our
01' their great seal of the United Kingdom of Great Britain and Ireland;




VAN DIEMEN'S LAND-CHARTER OF JUSTICE. 655
and such judges shall hold their offices during the pleasure of us, our
heirs and successors, and not otherwise. And we do further grant,
ordain and appoint, that the said Supremo Court oí Van Diemen's
Land shall have and use, as occasion may require, a seal bearing a de-
vice and impression of our royal arms within an exergue 01' label sur-
rounding the same, with this inscription, "The Seal of the Supreme
Court of Van Diernen's Land ;" and we do hereby grant, ordain and
appoint, that the said seal shall be delivered to and kept in the custody
of the said Chief Justice, And we do further grant, appoint and de-
clare, that no judge of the said Supreme COUl't of Van Diemen's Land
shall be capable of accepting, taking 01' performing any other office 01'
place of profit 01' emolument, on pain that the acceptance of any such
other office 01' place as aforesaid shall be and be deerned in law defacto
an avoidance of his office of judge, and the salary thereof shall cease
and be deemed to have ceased accordingly from the time of sueh ac-
ceptance of any such other office 01' place, And we do hereby consti-
tute and appoint our trusty and well-beloved John Lewes Pedder,
Esquire, to be the first Chief Justice, and our trusty and well-beloved
Alexander JWDuff Baxter, Esquire, to be the first Puisne Judge oí the
said Supreme Court of Van Diemen's Land, and the said Jolm Lewes
Pedder and Alexander M'Duff Baxter being respectively barristers in
England offive years standing and upwards. And we do hereby ordain,
appoint and declare, that there shall be and belong to the said court
tbe following officers, that is to say, a Registrar, and another officer to
be called the Master and Keeper of Records, and such and so many
other officers as to the Chief Justice of the said court for the time being
shall from time to time appear to be necessary for the administration
of justice and the due execution of all the powers and authorities which
are granted and committed to the said court by these our letters-patent r
Provided nevertheless, that no new office shall be created in the said
court unless the Governor 01' acting Governor for the time being of our
said colony shall first signify his approbation thereof to our said Chief
Justice for the time being, in writing under the hand of such Governor
01' acting Governor as aforesaid: And we do further ordain and direct
that all persons who shall and may be appointed to the several offices
of Registrar 01' Master and Keeper of Records of the said Suprema
Court of Van Diemen's Land, 01' to any offices in the said court,
whereof the duties sliall correspond to those performed by the Master,
Registrar, Prothonotary, or Keeper of Records of any or either of
our Courts of Record at Westminster, shall be so appointed by U!!,
our heirs, and successors, by warrant under our 01' their royal sign
manual; and that all persons who shall 01' may be appointed to any
other office within the said Supreme Court of Van Diemen's Land shall
be so appointed by the Governor for the time being of the said colony.




656 VAN DIEMEN'S LAND-CHARTER OF JUSTICE.
And we do further direct and appoint that the several officers of the
said court so to be appointed as aforesaid by us, our heirs, and succes-
sors, shall hold their respective offices during our and their pleasure;
and that tbe several officers of the said court so to he appointed as
aforesaid by the .said Governor, shall be subject to be removed by the
said court from the offices therein upon reasonable cause: And we do
herebyauthorize and empower the said Supreme CourtofVan Diemen's
Land to approve, admit, and enrol such and so·many persons, having
been admitted barristers at law 01' advocates in Great Britain 01'
Ireland, 01' having been admitted writers, attornies, 01' solicitors in one
of our courts at Westminster, Dublin, 01' Edinburgh, 01' having been
admitted as proctors in any Ecclesiastical Court in England, to act as
well in the character of barristers and advocates, as of proctors, attor-
nies, and solicitors in the said court; and which persons, so approved,
admitted, and enrolled as aforesaid, shall be and are hcreby authorized
to appear and plead and act for the suitors of the said court, subject
always to be removed by the said court from their station therein, upon
reasonable cause; and we do declare that no other pcrson 01' persons
whatsoever shall be allowed to appear and plead, 01' act in the said Su-
preme Court of Van Diemeu's Land, for and on behalf of such suitors 01'
any of them: Provided always, and we do ordain and declare that in
case there shall not be a sufficient number of such barristers-at-law, advo-
cates, writers, attornies, solicitors, and proctors within the said eolony,
competent and willing to appear and act for the suitorsof the said
court, then and in that case the said Supreme Court of Van Diemen's
Land shall and is hereby authorized to admit so many other fit and
proper persons to appear and act as barristers, advocates, proctors, at- .
tomies, and solicitors, as may be necessary, according to such general
rules and qualifications as the said court shall for that purpose make
and establish: Provided, that the said court shall not admit any
person to act in any 01' either of the characters aforesaid, who hath been
by due course of law convicted of any crime, which, according to any
law now in force in England would disqualify mm from appearing and
acting in any of our Courts of Record at Westminster. And we do
hereby ordain and declare that the Governor 01' acting Governor for the
time being of the said colony of Van Diemen's Land shall yearly, on the
first Monday in the month of January in each year, by warrant under
his hand and seal, nominate and appoint sorne fit and proper person to
act as and be the sheriff for our .said colony of Van Diemen's Land and
its dependencies for the year ensuing, which sheriffwhen appointed shall,
as soon as convenicntly may be, and before he shall enter upon his said
office,take an oath faithfully to execute his office,and the oath of allegi-
ance, before the Goveruor 01' acting Governor, who are hereby authorized
to administer the same; and sueh sheriff shall continué in sueh his offíce




VAN DIEMEN'S LAND-CHARTEH OF JUSTICE. 657
during the space of one whol~ year, to be computed from the said first
Monday in the month of January, and until another shall be appointed
and sworn into the said office; and in case sucb sheriff shall die in his
office, 01' depart from our said colony of Van Diemen's Land, tben ano-
ther person shall, as soon as convcniently may be after tbe death 01'
departure of such sberiff, be in like manner appointed and sworrs-in as
aforesaid, and sball continue in bis office for the remainder of the year,
and until another sheriff sball be dulyappointed and sworn into the
said office: And we do further order, direct, and appoint that tbe said
sberiff and his successors shall by themselves, 01' their sufficient deputies
to be by tbem appointed and duly authorized nnder their respective
hands and ssals, and for whom he and they sball be responsible during
his 01' their continuing in such office, execute, and the said sheriff and
his said deputies are bereby authorized to execute all the writs, sum-
monses, rules, orders, warrants, commands, and processes of tbe said
Supreme Court of Van Diemen's Land and make return of tbe same,
together with the manner of the execution thereof, to tbe Suprema
Court of Van Diemen's Land, and to receive and detain in prison all
such persons as shall be committed to the custody of such sheriff by tbe
said Supreme Court of'Van Diemerr's Land, 01' by the Chief Justice 01' the
Puisne Judge of the said court: And we do further authorize our
Governor 01' acting Governor for the time being of the said colony of
Van Diemen's Land, to re-appoint the same person to fill the office of
sheriff from year to year, if it shaU appear to our said Governor 01'
acting Governor expedient so to do; so nevertheless as that such ap-
pointment shall be annually renewed and be not ever made for more
than one year: Provided nevertheless, and we do hereby require our
snid Governor 01' acting Goveruor of our said colony for the time being,
in the selection of any person 01' persons to fill the said office of
Sheriff of Van Diemen's Land, to conform himself to such directions
as may from time to time be given in that behalf by us, our heirs,
and successors, through one of our 01' their principal Secretarias of
State: And we do further direct, ordain, and appoint, that whenever the
said Supreme Court of Van Diemen's Land shall direct 01' award any
process against the said sheriff, 01' award any process in any cause, mat-
ter, 01' thing, wherein the said sberiff, on account of his being related to
the parties 01' any of tbem, 01' by reason of any good cause of challenge
whicb would be allowed against any sheriff in Eugland, cannot 01' ought
not by law to execute the same, in every sueh case tbe said Supreme
Court of Van Diemen 's Land shall name and appoint sorne other fit
person to execute and return the same, and tbe said process shall be
directed to the person so to be named for that purpose, and the cause
of such special proceedings shall be suggested and entered on the
records of the said court: Provided always, and we do hereby ordain


uu




658 VAN DIEMEN'S LAND-CHARTER OF JUSTICE.
and declare, that the said Supreme Court 'of Van Diemen's Land shall
fix certain limits heyond which the said sheriff shall not be compelled or
compeUable to go in person, or by his officers or deputles, for the execu-
tion of any process of the said court; and when the process of the said
court shall be to be executed in any place or places beyond the limita
so to be fixed, we grant, ordain, and direct that the said Supreme Court
ofVan Diemen's Land shall, upon motion, direct by what person or per-
sons, and in what manner such process shall be executed, and the
terms and conditions which the party, at whose instance the same shaU
be issued, shall enter into, in order to prevent any improper use or
abuse of the process of the said court, and the said sheriff shall and he
is hereby required to grant his special warrant or deputation to such
person or persons as the said court shall direct for the execution of such
process; and in that case we direct and declare that the said sheriff,
his executors, or administrators, shall not be responsible or liable for
any act to be done in or in any way respecting the execution of such
process, under and by virtue of sueh special warrant, and that any per-
son or persons being aggrieved under or by pretence of such special
warrant, shall and may seek their remedy under any security which
may have been directed to be taken upon the occasion, and which the
said court is hereby authorized to direct to be taken. And whereas in
tbe said last-mentioned Act of Parliament, it is enacted that the said
Supreme Courts respectively shall be courts of ecc1esiastical jurisdiction,
and shall have full power and authority to administer and cxecute with-
in New South Wales and Van Diemen's Land, and the dependencies
thereof respectively, such ecclesiastical jurisdiction and authority as
shall be committed to the said Supreme Courts respectively, by our
charters or letters-patent : Now we do hereby, for us, our heirs, and
successors, grant, ordain, establish, and appoint that the said Supreme
Court of Van Diemen's Land shall be a court of ecclesiastical jurisdic-
tion, with fuJl power to grant probates, under the seal of the said eourt,
of the last wills and testaments of aJl or any oC the inhabitants of the
said colony and its dependencias, and of aJl other persons who shaJl die
and leave personal effects within the said colony and its deperídencies,
and to commit letters of administration, under the seal of the said court,
of the goods, chattels, credits, and all other effects whatsoever of the
persons aforesaid who shall die intestate, or who shall not have named
an executor resident within the said colony and its dependencies, or
where the executor, being duly cited, shall not appear and sue forth
SUCil probate, annexing the will to the letters of administration, when
such persons shall have left a will without naming any executor or any
person for executor who shall then be alive and resident within the said
colony and its dependencies, and who, being duly cited thcreunto, will
appear and sue forth a probate thereof, and to sequester the goods and
chattels, eredits and other effects whatsoever 'of such persons so dying,




VAN DIEMEN'S LAND-CHARTER OF JUsTlCE. 659
in cases allowed by law, as the same is and may be now used in the
diocese of London; and to demand, rcquire, take, hear, examine, and
allow, and if occasion require to disallow and reject, the accounts of
them in such manner and form as lIlay be used in the diocese of Lon-
don, and to do a11 other things whatsoever needfuI and necessary in that
behalf: l'rovided always, and wc do hereby authorize and require the
said court, in such cases as aforesaid, where letters of administration
shall be committed with the will annexed, for want of an executor ap-
plying in due time to sue forth the probate, to reserve in such letters of
administration fu11 power and authority to revoke the same, and to
grant probate of the said will to such executor whenever he sha11 duly
appear and sue forth the same: And we do hereby further authorize
and require the said Supreme Court of Van Diemen's Land to grant
and cornmit such letters of administration to any one or more of the
lawful next of kin of such person so dying as aforesaid, and being then
resident within the jurisdiction of the said court, and being of the age of
twenty-one years, and in case no such person shall then be residing
within the jnrisdiction of the said court, or, being duIy cited, sha11 not
appear and pray the same, to the registrar of the said court, or to such
person or persons, whether creditor or creditors or not of the deceased
person, as the court sha11 see fit: Provided always, that probates of
wills and letters of administration to be granted by the said court shall
be limited to such money, goods, chattels, and effects as tbe deceased
person sball be entitled to within the said colony and ita dependencies :
And we do hereby fnrther enjoin and require that every person to whom
such letters of administration shall be committed, shall, befare the
gr~ntiDg thcreof, give sufficientsecurity by bond, to be entered into to us,
our heirs, and successors, for the payment of a competent sum of money,
with one, two, or more able sureties, respect being had in the sum therein
to he contained, and in the ability of the sureties, to the valué of the es-
tates, credits, and effects of the deceased, which bond sha11 be deposited
in the said court among the records thereof, and there safely kept, and a
copy thereof shall be also recorded among the proceedings of the said
court; and the condition of the said bond sha11 be to the fol1owing
effect: "That if the above-bounden administrator of the goods, chattels,
and effects of the deceased do make or cause to be made a true and
perfect inventory of all and singular the goods, credits, and effects of the
said deceased which have or sha11 come to the hands, possession, or
knowledge of him the said administrator, or to the hands or possession
of any other person or persons for him, and the same so made do ex-
hibit into the said Supreme Court of Van Diemen's Land at or before
a day therein to be speciñed, and the same goods, chattels, credits, and
cffects, and all other the goods, chattels, credits, and cflects of the de-
ceased at the time of his death, or which at any time afterwards shall


uuZ




660 VAN DIEMEN'S LAND-CHARTER OF JUSTICE,
come to the hands 01' possession of such adrninistrator, 01' to the hands
01' possession of any other person 01' persons for him, shall well and
truly administer accordiog to law, and further shall make 01' cause to
be made a true and just account of his said administration at 01' before
a time therein to be specified, and afterwards from time to time as he,
she, 01' they shall be lawfully required, and all the rest and residue of
the said goods, chattels, credits, and effects which shall be found from
time to time remaining upon the said administration account, the same
being first examined and aUowed of by the said Supremo Court of Van
Diemen's Land, shall and do payand dispose of in a due course of
administration, 01' in sueh manner as the said court shall direct, then
this obligation to be void and of none effect, 01' else to be and remain
in full force and virtue ;" and in case it shall be necessary to put the
said bond in suit for the sake of obtaining the effect thereof for the
benefit of such person 01' persons as shall appear to the said court to be
interested therein, such person 01' persons from time to time giving sao
tisfactory security for paying all such costs as shall arise from the said
suit, 01' any part thereof, such person 01' persons shaU, by order of the
said court, be allowed to sue the sanie in the name of the Attorney-
General for the time being of the said colony, and the said bond shall
not be sued in any other manner: And we do hereby authorize and em-
power the said court to order that the said bond shall be put in suit
in the name of the said Attorney-General: And we do further will,
order and require, that the said court shall fix certain periods when
all persons to whom probates of wills and letters of administration
shall be granted by the said court, shall from time to time, until the
effects of the deceased person shall be fuUy administered, pass their
accounts relating thereto before the said court; and in case the effects
of the deceased shall not be fuUy administered within the time for that
purpose to be fixed by the said court, then, 01' at any earlier time, if
the said eourt shall see fit so to direet, the person 01' persons to whom
sueh probate 01' administration shall be granted, shall pay, deposit and
dispose of the balance of money belonging to the estate of the deeeased
then in his, her 01' their hands, and all moncy which shall afterwards
come into his, her 01' their hands, and also all precious stones, jewels,
bonds, bills,and securities belonging to the estate of the deceased, in
such manner and unto such persons as the said court shall direct for
safe eustody; and we require that the said eourt shall from time to time
make such order as shall be just for the due administration of such assets
and for the payment 01' remittance thereof 01' any part thereof, as occasion
shall require, to 01' for the use of any pcrson 01' pcrsons, whether resident
Ol' not resident in the said colony and its dependencies, who Illaybe enti-
tled thereto 01' any part thercof as creditors, legatees 01' next of kin, 01'
by any other right .01' tille whatsoever, And we further order and direct,




VAN DIEMEN'S LAND-CHARTER OF JUSTICE. 661
that it shall be lawful for the said court to allow to any executor or ad-
ministrator of the cffccts of any deceased person (except as herein men-
tioned) such comrnission or per centage out of their assets as shall be
just and reasonable for their pains and trouble therein : Provided
always, that no allowance whatever shall be made for the pains and
trouble of any executor or adrninistrator who shall neglect to pass his
accounts at such time or to dispose of any money, goods, chattels or
securities with which he shall be chargeable, in such manuer as in pur-
suance of any general or special rule or order of the said court shall be
requisite; and moreover every such executor or administrator so neg-
lecting to pass his accounts, or to dispose of any such money, goods,
chattels or securities with which he shall be chargeable, shall be charged
with interest at the rate then current within the said colony and its de-
pendencies for such sum and sums of money as from time to time shall
ha ve been in his hands, whether he shall or shall not make interest
thereof. Aud we do herebyauthorize the said Suprerne Court of Van
Diemen's Land to appoint guardians and keepers of infants and their
estates according to the order and course observed in that part of our
United Kingdom called England, and also guardians and keepers of the
persons and estates of natural fools, and of such as are or shall be de-
prived of their understanding or reason by the act of God, so as to
be unableto govern themselves or their estates, which we hereby au-
thorize and empower the said court to inquire Cinto,]hear and determine,
by inspection of the person, or such other ways and means by which the
truth may be best discovered aud known. And we do hereby direct,
establish, and ordain, that any person or persons may appeal to us, our
heirs and successors, in our or their Privy Council, from any judgment,
decree, order or sentence of the said Supreme Court of Van Diemen's
Land, in such manner, within sueh time, and under and subject to
such rules, regulations and limitations as are hereinafter mentioned,
that is to say, in case any such judgment, decree, order, or sentence
shall be given or pronounced for or in respeet of any sum or matter
at issue aboye the amount or value of ;:[1000 sterling,or in c~se such
judgment, decree, order, or sentence shall involve directly or indirectly
any c1aim, demand or question to or respecting property or any civil
right, amounting to or of the value of;:[l 000 sterling, the person or
persons feeling aggrieved by any sueh judgment, decree, order, or sen"
tence, may within fourteen days next after the same shall have-been
pronounced, made or given, apply to the said court by petition for
leave to appeal therefrom to us, our heirs and successors, in our or
their Privy Council; and in case such leave to appeal shall be prayed by
the pal'ly or parties who is or are directed to pay any such [1] surn of
money, or perform any duty, the said court shall and is hereby em-
powered either to direct that the judgment, decree, order 01' sentence




662 VAN DIEMEN'S LAND-CHARTER OF JUSTlCE.
appealed from shall he carried into execution, 01' that the execution
thereof sha11 bc suspended pending the said appeal, as to the said court
may appear to be most consistent with real and substantial justice; and
in case the said Gourt sha11 direct such judgment, deeree, order 01' sen-
tence to be carried into execution, the person 01' persons in whose fa-
vour the same sha11 be given, shall, before the execution thereof, enter
into good and sufficient security, to be approved by the said court,
for the due performance of such judgment 01' order as we, our
heirs and suecessors, shall think fit to make thereupon; 01' in case the
said court shall direct the execution of any such judgment, decree,
order, 01' sentence to be suspended pending the appeal, the person
01' persons against whom the same sha11 have been given, shall in
like manner and before any order for the suspension of any sueh exe-
cution is made, enter into good and sufficient security to the said
court for the due performance of such judgment 01' order as we, our
heirs and successors, sha11 think fit to make thereupon; and in al!
cases we will and require that security shal! also be given by the
party 01' parties appel!ant to the satisfaction oftbe said court for the
prosecution of the appeal and for the payment of al! such costs as
may be awarded by us, our heirs and suecessors, to the party re-
spondent; and if such Iast-mentioned security shall be entered into
within three months from the date of such petition for leave to ap-
peal, then, and not otherwlse, the said court sball a110w the appeal,
and the party 01' parties appellant shall be at liberty to prefer and
prosecute his, her 01' their appeal to us, our heirs and successors, in
our 01' their Privy Council in such manner and under such rules as are
observed in appeals made to lIS frorn our plantations 01' colonies: aud
we do hereby reserve to ourself, our heirs and successors, in our 01'
their Privy Council, full power and authority, upon the humble petition,
at any time, of any person 01' persons aggrieved by any judgment 01'
deterrnination of the said court, to refuse 01' admit hís, her 01' their
appeal therefrom, upon such terms and upon such limitations, restric-
tions and regulations as we or they shall think fit, and to reverse,
correet 01' vary such judgment 01' determination as to us 01' them shall
seem meet: and it is our further wil! and pleasure, that in al! cases
of appeal allowcd by the said court, 01' by us, our heirs 01' succes-
sors, the said court shal! certify and transmit to us, our heirs, 01'
successors, in our 01' their Privy Council, a true and exact copy of al!
evidence, proceedings, judgments, decrees and orders had 01' made in
such cases appealcd, so far as the same have relation to the matters of
appeal, such copies to be certified under the seal of the said court.
And we do further direct and ordain, that the said court shall in
all cases of appeal to us, our heirs 01' successors, conform to and execute,
or cause to be executed, such judgments and orders ás we shall think




VAN DIEMEN'S LAND-CHARTER OF JU8TICE. 66'3,
lit to make in the premises, in sueh manuer as any original judgment,
decree, or decretal ordcr, or other order or rule of the said court of Van
Diemen'sLand, should or might have bcen executed: and we do hereby
strictly charge and command all governors, commanders, magistrates, mi-
nisters, civil and military, and all our liege subjects within and belong-
ing to the said eolony, that in the exeeution of the several powers, juris-
dictions and authorities hereby granted, made, given or created, they be
aiding and assisting, and obedient in all things, as they will answer


• the contrary at their peril: Provided always, that nothing in these
presents contaiued, or any act which shall be done under the autho-
rity thereof, shall extend or be construed to extend to prevent us, our
heirs and sueeessors, to repeal these presents Uf any part thereof,
or to make such further or other provision by letters-patent' for the
administration of justiee, civil and criminal, within the said eolony
and the places now or at any time hereafter to be annexed thereto, as to
us, our heirs and suceessors, shall seem fit, in as full and ample a man-
ner as if these presents had not been made, these presenta or anything
herein contained to the contrary thereof in anywise notwithstanding.
In witness, &c., the 4th day of March,


By Writof Privy Sea!.




( 6640 )


WESl'ERN AUSTRALIA.
,-


Turs colony, which is frequently called the Swan River
Settlement, is situated on the western coast of New Hol-
land, between the parallels of 31° and 36° south latitude,
and 115° and 119° east longitude. It comprehends the
settlement on the banks of the Swan River as well as
those on the shores of Hardy's Inlet and King George's
Sound. The towns are Perth, the "seat of government,
Freemantle, Augusta, and Albany.


HISTORY.


The Swan River was discovered by Vlaming in 1697,
but little notice was taken of it until1827, when Captain
Stirling, in a vessel called the Success, surveyed the adja-
cent coast and the banks of the river. The flattering
accounts that Captain Stirling and the government bo-
tanist, MI'. Fraser, gave of the country, induced Sir
George Murray, the Secretary for the Colonies, in the
year ISQ8, to determine upon establishing a colony
there.I l ) Accordingly there was issued from the Colonial
Office on the 5.th December, lSQ8, the fol1owing "'rerms
for Settlers desirous of proceeding to the Swan River."-
H Although it is the intention of His Mejesty's.govern-
mcnt to form a settlement on the western coast of Aus-
tralia, the government do not intend to incur any expense
in the conveyance of settlers, 01' in supplying them with
necessaries after their arrival. Such persons, however, as
may be prepared to proceed to that country at their own
cost befo re the year 1829, in parties comprehending a
proportion of not less than five female to six male settlers,


(1) The settlement at King George 's
Sound was elfected sorne time previ-
ously, but it was then only a penal
settlemeut to the other Australian set-


tlements. Sinee King George's Sound
has been adderl to the Swan River
Settlement the couvicts ha ve been re-
moved.




WESTERN AUSTRALIA. 665
will receive grants of land in fee-simple (free of quit rent),
proportioned to the capital they may invest upon public
01' private objects in thc colony, to the satisfaction of His
Majesty's government at home, certified by the Super-
intendent 01' other officer administering the colonial go-
vernment, at the rate of 4,0 acres for every sum of ,ES so
invested, provided they give previous security; first, that
a11 supplies sent to the colony, whether of provisions,
stores 01' other articles which may be purchased by the
capitalists there, 01' which sha11 have been sent out for
the use of them 01' their parties on the requisition of the
Secretary of State, if not paid for on delivery in the co-
lony, shall be paid for at home, each capitalist being to
be held liable in his proportion; and secondly, that in the
event of the establishment being broken up by the Go-
vernor 01' Superintendent, a11 persons desirous of return-
ing to the British islands, shall be conveyed to their own
homes at the expense of the capitalists by whom they
may havo been taken out. The pa~sage of labouring
persons, whether paid for by themselves 01' others, 01'
whether they be male 01' female, provided the proportion
of the sexes before mentioned be preserved, will be con-
sidered as an investment of capital, entitling the party by
whom any such payment may have been made to an al-
lowance of land at the rate of .1'15, that is, of 200 acres
of land for the passage of every such labouring person
over and aboye any other investrnent of capital.


"Any land thus granted, which shall not have been
brought into cultivation, 01' otherwise improved or re-
claimed from its wild sta te, to the satisfaction of the go-
vernment, within twenty-one ycars from the date of the
grant, shall at the end of twenty-one years revert abso-
lutely to the crown."


Other terrns were subsequently issued from the Colo-
nial Office, extending to settlers, who should arrive be-
fore the end of 1830, the bounty of a free grant of land
according to the amount of capital 'they should be pre-
pared to invest; the terms provided, however, that "any
land so allotted, of which a fair proportion, at least one-
fourth, shall not have been brought into cultivation, 01'
otherwise improved to the satisfaction of the local govern-
ment, within three years from the date of the license of
occupation, sha11 at the end of three years be liable to
a payment of 6d. per acre for all the land not so culti-




666 WESTERN AUSTRALIA.
vated 01' improved into the public chest of the settlement;
and at the expiration of seven years more, so much of the
whole grant as shall still remain in an uncultivated or un-
improved state will revert absolutely to the crown. And
in every grant willbe contained a condition, that at any
time within ten years from the date thereof the govern-
ment may resume, without compensation, any land not
then actually cultivated or improved as before mentioned,
which may be required for roads, canals, 01' quays, 01' for
the site of public buildings"


In the year 1829 Captain Stirling, the Governor, and
the first settlers landed on the Swan River; and settlers
continued to arrive from that time to the expiration of the
year 1830, when the number is supposed to have
amounted 'to 3000. The population was subsequently
reduced to about 2000, as many persons quitted the place,
not having sufficient firmness to face the difficuIties which
always present themsclves in fourÍding a new colony,
The remaining settlers have now surmounted those diffi-
culties, and smoothed the way for future adventurers.


GOVERNMENT.


The 10 Geo. 4, c.22, entitled "An Act to provide until
the 31st December, 1834, for the government of His Ma-
jesty's Settlement in Western Australia! on the western
coast of New Holland," is the only act of parliament spe-
cifically relating to this colony, It enacts, "that it shall
and may be lawful for His Majesty, his heirs and sueees-
sors, by any arder or orders to be by him 01' them made,
with the advice of his 01' their Privy Couneil, to make,
ordain and (subject to such conditions and restrictions as
to him 01' them shall seem meet) to authorize and em-
power any three or more persons resident and being
within the said settlemenr to make, ordain and establish


, all sueh laws, institutions and ordinanees, and to consti-
tute such courts and officers as may be necessary for the
peaee, order and good government of His Majesty's sub-
jeets and others within the said settlement."


Notwithstanding this act reeeived the royal assent as
early as the 14th May, 1829, no charter, 01' order in
council in the nature of a charter, was promulgated
until the 1st November, 1830, when His Majesty with the
advice of his Privy Council, and in pllrsuanee and exer-
cise of the authority in him vested by the said act, 01'-




WESTERN AUSTRALIA. 667
dered that the Governor for the time being, 01' the officer
administering the government, the senior officer of the
land forces next in command, the Colonial Secretary of
the territory, the Surveyor-General, and the Advocate-
General, so long as they should be resident in the settle-
ment, 01' any three of them, of whom the acting Governor
was to be one, should be a Legislative Council, to make
the necessary laws and ordinances, and to : constitute
courts and officers for the government of the colony. (2)


CIVIL JUDICATURE.


Thc Governor and Legislative Council, by a law
(2 Wm. 4, No. 1,) passed 10th February, 1839Z, esta-
hlished a court of civil judicature, called "The Civil
Court ofWestern Australia," and constituted it a Court
of Record, having jurisdiction in all pleas and in all cases
as fulIy and amply in the settlernent as the Courts of
King's Bench and Common Pleas and Exchequer have in
England; and also gave it the power to hear and deter-
mine qucstions of idiotcy and lunacy, and to appoint
guardians and committees over the persons and properties
of infants, idiots, and lunatics, and to grant probates of
wills and letters of administration, A party feeling ag-
grieved, however, by a decision of the court in cases
where the thing in dispute exceeds oflOO, may appeal to
the Governor and other members of the Executive Coun-
cil, whose judgmefit is final, and is to be executed by the
court as a judgment pronounced by the court itsclf.


Mesne Process.-The Sth section of the same colonial
act provides that no arrest shall he allowed on mesne
process, and tbat all process of execution sball be di-
rected against property only, and not against the pcrson,
except in cases where the debtor is about to leave the
colony, when, on cause stated on affidavit, the Commis-
sioner of the Court muy issue a warrant for his arrest ;
but in such cases the party at whose instance the debtor
has been arrested must prosecute his suit with due dili-
gence, 01' the commissioner may on petition discharge the
party arrested.


The pleadings are oral, and cases involving amounts
under of20 are determined without a jury, but other


(2) See this Order in Council, post.




668 WESTERN AUSTRALIA.
cases are tried before a jury 01' not, at the option of
either party, The judge presiding in this court is called
the Commissioner of the Civil Court of Western Austra-
lia. He is appointed by the Governor by warrant under
the 'seal of the colony, and holds his offiee during good
behaviour, but may be dismissed by the Governor and
Executive Couneil by an order also under the seal of the
colony.


The officers of the court are a Registrar, Messenger
and Bailiff, attendant upon the court, and two Bailiffs re-
sident in distant parts of the settlement,


Court of Ouarter Sessions.
This eourt is eonstituted by a local act, and has power


to hear -and determine all fclonies, capital 01' otherwise,
perjuries, forgeries and misderneanors ; but in cases in
which death is awardedby the court, the sentence is re-
quired to be approved of by the Exeeutive Couneil before
it is carried into effect. The Govcrnor appoints the
chairman of the court by warrant.


Vice-Admiralty Court,
This court is instituted by letters-patent, the King's


warrant for which hears date the l;'¿th day of November,
1831. The court has jurisdiction to the same extent as
the Courts of Vice-Admiralty in other coloníes, exeepting
that it cannot adjudicate in prize causes.


LAWS.


The laws of England are generally adopted in the ad-
ministration of justice, hut none of the acts of the British
Legislature relating specifically to N ew South Wales and
Van Diemen's Land extend to this colony. (3) .


Acts of the Legislatiie Councll.
~


The principal aets of the Legislative Council, besides
those constituting the Civil Court and Court of Quarter
Sessions, are the aets for regulating juries and the offiee
of sheriff, for securing debts due to the crown, for regis-


(3) 'I'he mercantile interests of .England require the 54 Gen. 3, c. 15, to be
extended there, '




WESTERN AUSTRALIA. 669
tering deeds, &c. and for facilitating and simplifying the
transfer of real property,


2 Wm. 4., (No. 3). An Act for regulating the constitu-
tion of Juries and the office of Sheriff. (Passed zd March,
1832.)


Tbe number of petty jurymen (s, 1) in civil cases to be
twelve, and in grand juries not less than thirteen nor more
than twenty-four, Juries to be subject to the same rules
as in England, unless where altered by this acto AH ju-
rymen must be between tbe ages of l21 and 60, and pos-
sessed of a real estate of the value of .1:50, 01' of personal
property of the value of 1'100, and must have been re-
sident within the colony for one year.


Special juries (s, 17) are to consist of not less tban
eigbteen nor more tban twenty-four persons "of tbe
greatest repute and substance."


The Governor may (s, 23) appoint a sheriff annually
for the colony, and re-appoint him if expediento Ir the
sheriff is incompetent to act on account of any good
ground of cbaIJenge, the court may award the process to
some other persono


2 Wm. 4, (No. 5). An Act to seeure the paymeht of
debts due to the Crown. (Passed 6th March, 1832.)


This aet declares the mode of recovering crown debts
in England to be unsuited to this colony, and provides
(s. 1) that the Colonial Secretary is to furnish the Clerk
of the Civil Court with a list of debtors to the crown; and
whenever ti private person recovers judgment against any
such debtor, the clerk is to give notiee of a stay of exe-
cution on such judgment, and then to 'caU on the debtor
to show cause wby execution should not issue for the
crown, The court may hear the question and award
execution, either to the crown 01' the creditor.fé) .


2 Wm. 4, (No. 6).An Act toprevent secret and frau-
dulent conveyances, and to provide means whereby the
title to real property may be ascertained. (Passed Gth
March, 1832.)


Enacts, (s, 1) that from and after the passing of this
act there shaU be established at Perth a public offiee
for the registration of deeds, conveyances and other in-
struments, wills and judgments, in manner hereafter


(4) This law making the debtor the that, ever issued even from a colonial
guardián of the rights of the creditor is legislatíve council.
one of the rnost absurd enactments




670 WESTERN AUSTRALIA.
mentioned; and that a fit and proper person shall be
appointed Registrar thereof by his Excellency the Go-
vernor by warrant under his hand and the public seal of
the colony; and that from and after the establishment of
such office, all conveyances and other deeds, wills and
devises, and other instruments in writing now 01' hereafter
to be made 01' executed, and all judgments hereafter to
be obtained, (by which conveyances, deeds and other
instruments in writing, wilIsand judgments, any lands,
tenements 01' hereditaments in Wsstern Australia 01' its
dependencies now are 01' shalI ·01' muy be hereafter af-
fected,) may be entered and registered in the said office.


The second section directs, that all such judgments,
deeds, conveyances 01' instruments in writing, obtained,
made 01' executed respectively after the passing of this
act, shall have priority one over the other according to
the priority of their respective dates of registration, and
that alI judgments, deeds, conveyances .01' instruments in
writing as Iast aforesaid, and aHfuturo devises which shaIl
not be registered in pursuance of this act, shaIl (as against
any subsequent boná fide purchaser 01' mortgagee of the
same lands, tenements 01' hereditaments for valuable con-
sideration,) be absolutely nulI and void to all intents and
purposes, provided that nothing herein contained shall
extend to boná fide leases at rack-rene for any tcrm not
exceeding fourteen years.


The third section cnacts, that all judgments, deeds,
wills, conveyances 01' instruments in writing hereafter ob-
tained, made 01' executed, which shall be duly registered
within thc respective times next mentioned, (that is to
say,) all deeds, conveyances and other instruments in
writing (except wills) which (if executed in Western Aus-
tralia 01' its dependencies) shall be registered within one
month, 01' which (if executed in any other place) shall be
registered within eight months after the time of execution
thereof respectively; ami all wills which (if the devisor
die in "Vestern Australia 01' its dependencies) shall be re-
gístered within one month, 01' which (if thc dcvisor die
in any other place) shall be registered within twelve
months after the decease of cvcry devisor respectively;
and all future judgments which shall be registered within
one month after the entry 01' recording thcreof, shall seve-
rally be in like manner cntitled to priority, and shall take




WESTERN AUSTRALIA. 671
..


effect respectively by relation to the date thereof only, in
the same manner as if this act had never been made.


:e 'VmA, (No. 7). An Act to facilitate and simplify the
transfer of Real Property.


A conveyance in fee may be made (s. 1) of heredita-
ments situate within the colony by bargain and sale with-
out livery of seisin, attornment 01' other ceremony.


Simple mortgages muy be effected by the deposit of
deeds, 01' by agreement, (s. Q); and on non-payment of
the mortgage-money, the mortgagor shaU convey the fee.


A married woman may (s.4) pass her interest in lands
by an instrument by her jointly executed with her hus-
band, before a commissioner 01' justice of the peace; and
tenant in tail (s, 6) may bar the entail by a deed executed
before the like pel'sons. Any other interest that in Eng-
land would require to be passed by fine 01' recovery, may
(s. 7) be passed in the colony by a deed executed as
aboye. Instruments affecting land (s. 8) in this colony, ir
executed before the Lord Mayor of London, 01' the chief
magistrate of any other city, borough 01' town corporate,
shall have the same effect as if executed befare a com-
missioner 01' justice of the peace in the colony,


-


W,ESTERN AUSTRALIA-ORDER IN COUNCIL.


At the Court at Saint Jamcs's, the 1st of November, 1830;
Present, The King's Most Exeellent Majesty in Council.


WHEREAS by a certain act of parliament passed in the tenth year of the
reign of his late Majesty King George the Fourth, chapo 22, intituled
" An Act to provide until the 31st day of December, 1834, for the go-
vernment oí His Majesty's Settlemcnts in Western Australia, on the
western coast of New Holland," it is enacted, "that it shall and may
be lawful for Bis Majesty, his heirs and successors, by any order OI
orders to be by him or them made with the advice of his or their Privy
Council, to make, ordain and (subject to sueh conditions and restrie-
tions as to him or them shall seem meet), to authorize and empower
any three or more persons resident and being within the said settle-
ments, to make, ordain and establísh all sueh laws, institutions and
ordinances, and to constitute sueh courts and offlcers as may be neces-
sary for the peaee, order and good government of Bis Majesty's sub-




6]2 WESTER~ ¡\USTRALIA-ORDER IN COUNCIL•
. jects a11<I oth'ers within the saíd settlements: provided that al! such orders
in council, and all laws and ordinances so to be made as aforesaid,
shall be laid before both Houses of Parliameot as soon as convenieotly
may be aAer the makiog and enactment thereof respectively;" His
Majesty doth therefore, with the advice of his Privy Council, and in
pursuance and exercise of the anthority in him vested by the said act,
order, and it is hereby ordered, that the Governor for the time being of
the said settlements of Western Australia, or the officer administering
the government thereof; the senior officer of His Majesty's land forces
next in command, the Colonial Secretary of the said territory for the time
being, the Surveyor-General thereof for the time being, and the Advo-
cate-General thercof for the time bcing, so long as they shall respec-
tively be resident in ths said settlements, 01' any three of them, of whom
the acting Governor to be one, shall have anthority and power to make,
ordain and establish al! such laws and ordinances, and to constitute such
courts and officers as may be necessary for the peace, order and good go-
vernment of His Majesty's subjects and others within the said settlements;
which power and authority shall nevertheless be so exercised , subject to
the following conditions and restrictions, that is to say, that alI such
laws and ordinances as aforesaid, shall by the said Governor or officer
administering the government, be with all convenient expedition trans-
mitted to His Majesty for his approbation 01' disallowance, through oue
of his Principal Secretaries of State; and that the same 01' any part
thereof shal! not be in force within the said settlement after Bis Ma-
jesty's disallowance thereof, 01' of any of them, or of any such part
thereof, or of any of them as aforesaid, shall be made known therein;
and further, that no such law 01' ordinance shall be made unlcss the
same shal! have first been proposed by the said Governor 01' ofticer
administering the government; and further, that in making all such
laws and ordinances, the said several pel'sons shall and do conform to
all such instructions as His Majesty shall from time to time be pleased
to issue for that pLll'pose; and further, tbat no court of justice be con-
stituted by the several persons aforesaid within the said settlements,
exccpt by a law 01' ordinance to be by thern for that purpose made,
under and subject to the conditions and restrictions aforesaid. And tbe
Right Honourable Viscount Goderich, one of Bis Majesty's Principal
Secretaries of State, is to give tha necessary directions hercin accord-
íngly,


""lO Since the manuscript of the ehapters on the Auslralian Settlements was
placed in the printer's hands two bills have been brought into the House of
Commons, bul have uol yct been passed ; the one is an Acl for Establishing a
Criminal Courl in Norfolk Island, and the other for founding a Settlement on
the shores of Spencer's Gulf, lo be called r, Southern Australia."




· ( 673 )


BRITISH POSSESSIONS
IN


EUROPE.


GIBRALTAR. (1)


-


GIBRALTAR, in longitude 5° 19' west, latitude 3606' north,
is a town and promontory of Spain in the possession of
Great Britain, and is situated in the province of Andalusia
in the straits which unite the Atlantic with the Mediterra-
nean, The promontory was the Mount Calpe of the anci-
ents, and one of thc pilIars of Hércules. It derives its
present name from Gebel, an Arabic word signifying
mountain, and Tarik 01' Tarif, the name of a Moorish ge-
neral, who landed there in the eighth century. It stands
at the eastern extremity of the straits to which it gives
its name, and is distant about six leagues from the African
shores. The bay is spacious, and affords a safe and con-
convenienl station for ships, and the water is so deep that
large vessels can come close to the quay. The town
stands on the shore of the bay on the west side of the
rock, at the foot of the mountain towards the main land.
The population of the town, exclusive of the garrison, is
12,600.(2) Gibraltar is a free port, and is valuable for


.u commercial purposes as a general entrepot for goods to be
sent into Spain 01' to the adjacent coast of Barbary.-Ency.
Metro., M'Culloch's Dict. Como


HISTORY AND CONSTITUTION.


Gibraltar was taken by the English in 1704, and has
been held by them ever since,although besieged in


(1) On the question whether Gib· (2) Mr. M'Culloch 'says 16,500.
ralter is to be considered a colony, see Dict, of Commerce, arto Gibraltar.
ante, p. 1, Dote (1). •


xx




674 GIBRALTAR.
1705, 17~7, 1779, and 1783. In July, 17~~, the inha-
bitants petitioned the crown to establish a civil judicature
there, The petition set fortb, "that the petitioners con-
cerned in trade were greatly prejudiced already, and
greatly discouraged to continue the same for the want of a
form of civil government establisbed there, it being at pre-
sent un3er a military one, whereby the petitioners are not
secure in their properties; that His Majesty had been
pleased to grant his royal letters-patent for the purpose,
yet it is not'withstanding in the hands of military magis-
trates." This petition was advocated by Mr, Hayles,
who seems to have acted in the capacity of agent for the
petitioners, and by Mr, Godfrey, then one of the mem-
bers of parliament for the city of London. These gen-
tlemen laid before the Attorney and Solicitor-General
(Raymond and Yorke) two papers in support of the
prayer of the petition. These papers are quoted by
those learned persons in their report to the Lords CoÍD-
missioners of Trade and Plantations, aird .from them it
appears that "there were at Gibraltar when it was taken
one nunnery, two convents-one of the Franciscans and
the other of the Cathedral Church, one hospital oí Fran-
ciscans, the Convent oí Our Lady of Europa, four
chapels, and 1000 families," The petitioners in the first
of tbese papers stated, that "if a civil government was
established there as in the American colonies, 01' in some
such form as followeth, the place would defray the charges
of maintaining itself, and in a few years would bring a sur-
plus revenue, viz.r-« .


" A mayor, aldermen and common-council, to be annu-
ally chosen out of the English residing there; two sheriffs,
to be chosen out of the common-couneil; two bailiffs, to
be appointed by the sheriffs; a town-clerk; a judge of the
admiralty; a chamberlain; a treasurer for the colony; a
muster-master, to be appointed by the mayor and alder-
men, to muster the militia and the garrison whenever the
garrison is mustered, and to sign the muster-rolls with
the mayor; the militia to guard the two towers next tbe
land to prevent the soldiers deserting; a house to be set-
tled for the town-hall, where the records shall be kept,
and the courts of justice act, and the magistrates assem-
ble; a house to be settled for the governor and officers of
the garrison; the prívate soldicrs to have proper bar-




GIBRALTAR. 675
racks assigned them ; no consuls of any nation 01' Jews to
reside there."


The substance of the second papel' was, that at least
200 of His Majesty's subjects inhabiting in Gibraltar suf-
fered for want of a court of civil judicature being esta-
blished there, being more ill-treated than strangers.


"That the Spaniards who inhabit there have a Spanish
consul and a Spanish lawyer, whodecide all differences
that arise between them,


"That the French who dwell there are governed after
the same manner as the Spaniards, who pay large rents to
the Governor monthly for their houses, which, if so applied,
would contribute, in a great measure, towards the subsist-
ence of His Majesty's forces in that garrison.


" That the Genoese who live there have likewise a con-
sul and a lawyer of their own nation to decide their dis-
putes.


"That the Dutch who are there have also a Dutch
consul and Iawyer, who determine their differences."


The report went on to sta te, that the matter contained
in the petition submitted by Mr, Hayles had been taken
into consideration by the Lords Commissioners of Trade
and Plantations, who reported to the Lords of the Council
upon the 2d of August, 1720, that courts at Gibraltar,
erected after the manner of the common law courts of
Great Britain, would be dilatory and expensive, and conse-
quently not well adapted to the decision of transitory and
mercantile d'is)IUtes in a free port, where there were but
few resident inhabitants; they therefore proposed that
a more summary judicatory should be established at Gib-
raltar, and submitted to the Council whether the Judge-
Advocate of the garrison might not be authorized, upon
any dispute that migbt arise tbere, to can to his assistance
two merchants, disinterested persons, by whose advice he
should decide between the parties contending, from which
judgment • appeal might líe to the Governor; and in
cases of a considerable value, another appeal from the
Governor's decision to His Majesty in Council, as the last
resort. The Council had approved of the representation,
and by an order of the 11th August, 1720, had direeted the
Attorney and Solicitor-General to prepare a draft of such
powers as it might be fitting for His Majesty to grant.
A draft had been accordingly prepared, "after which a
commission passed the great seal, directing and empow-


xx2




676 GIBRALTAR.


•


ering the Judge-Aelvocate for the time being, together with
two merchants within the said town of Gibralter, to be
appointed from time to time by the Judge-Aavocate, and
any two of them (whereof the Judge-Advocate to be one)
to be a court, to which court full power and authority
was given to hold plea of and to hear and determine in
a summary way aH pleas of debt, account, 01' other con-
tracts, trespasses, and all manner of othcr personal pleas
whatsoever between any person or persons whatsoever,
residing or being within the said town or precinct or terri-
tories thereof, and to give judgment and sentence accord-
ing to justice and right, and the method of proceeding
and manner of execution were thereby prescribed."


This commission, passed in that manner and upon the
consideration aboye mentioned, appeared to be stillin force,
and the Attorney and Solicitor-General stated that no ob-
jection had been made before then, as to the substance of
it, but only as to the persons appomted' to be judges, the
principal whereof being the Judge-Advocate, and he
having authority from time to time to name the two mer-
chants that were to act with him, it was objected that this
was too great a power to be entrusted with a single per-
son, especial1y with one who was an officer of the garrison,
and subject to the command of the military Governor, and
upon that account the more improper; and therefore it
had been proposed that persons should be expressly ap-
pointed by His Majesty's commission to be judges, who
understood the law and were qualified for the regular
execution of justice, with competent salaries for their
trouble, which might be defrayed by the revenues of the
place.


The Attorney and Solicitor-General stated that the said
commission had been passed at the instan ce of the said Mr.
Hayles, upon a particular occasion, which was represented
in a very pressing manner to require great despatch, in
order to the recovering of certain debts then in danger of
being lost; but they admitted the validity of the objection
to the tribunal, and said that it might be proper that per-
sons should be expressly named judges in the very com-
mission, who might be more particularly qualified for the
administration of civil justice. They also expressed them-
selves favourable to the establishment of sorne form of
civil government, and then said "Upon this information
we have made the best inquiry we could whether by the




GIBRALTAR. 677
articles of surrender 01' any treaties, declarations, 01' other
public acts ratified by thc crown of Great Britain, any
legal provision has been made, 01' rules givcn for that
purpose, and have been abIe to find none; and thereforc
we are humbly of opinion that, as a fundamental necessary
to any form of civil government, without which courts of
judicature will be in a manner useless, and for the quieting
of the inhabitants in their possessions, sorne settlement
ought to be made of the property in the houses and lands
within this town and territories." They then remarked
upon the evil of the absence of any but martiallaw, and
with a view to the framing of a seheme pursuant to their
lordships' order, they referred to the charter granted to
Tangiers and to the commissions issued in the cases of
Jamaica and the Caribbee Islands. They then took the
chárter to Tangiers as their model, and gave the foHowing
brief but curious account of the government established
in that place while it was in the possession of EngIand
during the rcign of Charles n.: _H As to Tangiers, the
mcthocl then taken was thus, viz. by Ietters-patent dated
the 20th April, 1668, thc town was dcclared to be a free
city, all the inhabitants (being Christians) were .incorpo-
rated by the name of mayor, aldermen, and eommon-
aIty, with a recorder and twelve common councilmen;
out of the mayor, recorder, and aldermen was constituted
a Court of Record for determining civil causes, and a
Court of Oyer and Terminer for criminal matters, with a
general jurisdiction (~xcept as to persons in actual pay in
the garrison.) Besicfes which a particular court is erected
for mercantile causes, and aH proceedings were directed s
to he according to the laws of EngIand, as near as the
condition of the place and safety of the inhabitants wouId
permito" Tbe report concludecl with observing that "the
objection made to the court already established being only
with regard to the persons thereby appointed judges, we
are humbIy of opinion, that if proper persons are expressIy
nominated judges by His Majesty in the commission itseIf,
the present form may in other parts thereof not beim-
proper."-l Chal. Opino 169 to 181.
T~ result of this report seems tohave been that the


nomination of the judge was afterwards made by the
King's commission, in the manner recommended ; cer-
tainly no new chárter of justice was then issued, for the
report of the Attorney and Solocitor-General is datcd




678 GIBRALTAR.
14th December, 1722, and the only chárter granted by
Geo.1, was issued in the previous year, namely, upon
the 4th of November, in the seventh yea1' of his reign,
Another charte1' of justice was granted by Geo.~, on
the 10th of May, in the thirteenth year of his reign,
and then another on the 1st of August, in the twenty-
sixth yea1' of his reign, making sorne alterations in the
courts established by the two former charters, but in
other respects confirming them, A new charter of justice
was granted by Geo. 3, on the 12th May, in the fifty-
seventh year of his reign, in which the three former char-
ters were repealed, and which then constituted a court
of judicature called by the name of the Court of Civil
PIe as, to consist of one person leamed in the laws of
England to be appointed by the crown and to hold office
during pleasure, such person to be called the Civil Judge,
01' the Jl1dge of the Court of Civil Pleas at Gibraltar.
This person, with two resident inhabitants, to be appointed
by him during his pleasure, was to determine all suits,
real and personal, (where the matter in dispute was not
less than 10 dollars,) that might arise within the gar-
rison, according, as nearly as might be, to the laws of
England. The court was also to hold pleas of foreign
attachment, to grant probates of wills and administration
of the estates of intestates. From this court an appeal
was to líe to a court called "The Court of Appeals,"
which was to consist of thc Governor for the time being,
and of the -Iudge-Advocate for the time being, who was to
act as the Governor's assessor. Debts not exceeding 10
dollars were to be recovered before the Jlldge-Advocate
and the Civil Judge, one of whom was to sit one day in
each week, and "severally to have full power, &c." to
summon the defendant, and upon the examination on oath
of the parties themselves and other witnesses, to decide
the disputed demando The Governor, the Judge-Advo-
cate, the Judge of the Court of Civil Pleas, and one inha-
bitant nominated by the crown, were all appointed Justices
of the Peace for the town and territory of Gibraltar. The
Governor and Judge-Advocate were to constitute a court
of criminal jurisdiction, to be called the Court of Geaeral
Sessions, with power to try all offences except treason 01'
misprision of treason, unlcss the offender was in actual
payas a soldier. The jurors were "to be taken out of
the inhabitants, including the garrison," The Judge-




GIBRALTAR. 679
Advocate was appointcd sitting magistrate for the town
and territory of Gibraltar, and was directed to hold a
Petty Sessions on Monday and Thursday in every week
for all matters of police, The Judge-Advocate and the
J udge of the Court of Civil Pleas were directed to hold
Quarter Sessions. This court was to have power to in-
quire of and determine a11 "misdemeanors, nuisances,
assaults, offences, and felonies, (except such as are pu-
nishable by death 01' transportation,) " unless the offender
was in actual pay in the garrison, The Court of Quarter
Sessions was to be assisted in criminal cases by grand and
petty juries, but might determine appeals against rates
without the intervention of a jury. In the last matter the
judgment of the Court of Quarter Sessions was not to be
subject to any appeal whatever. In case of the death of
the Judge-Advocate, the Governor might appoint the
J udge of the Civil Court to act in his stead as Judge of
the Court of General Sessions, and as sitting magistrate
for the town and garrison of Gibraltar, till the King's
pIeasure was known; and in case of the death, &c. of the
Judge of the Civil Court, the Judge-Advocate might, in
like manner, be appointed to supply his place. The
courts thus constituted were abolished, and a new system
of judicature established by a Charter of Justice dated
1st September, 1830. (See post, 680.)


A commission was issued 1'01' the trial of pirates, under
the authority of the 46 Geo. 3, dated on the 26th April,
1815, and was directed to the Governor, the Commissioner
for N aval Affairs, the Judge-Advocate, the Civil Secretary,
and the Commander of the N aval Forces at Gibraltar for
the time being, (the last not being under the rank of post
captain,) and also to all admirals and captains, and com-
manders of the ships of war within thc port, (not under
the rank of post captain,) "to inquire, upon the oath of
good amllawful men of our said town and garrison, and by
other ways," into all treasons, piracies, murders, &c. com-
mitted on the sea, "according to the laws and customs of
this our realm, and the statutes in that behalf made and
provided, as the same might have been heard and deter-
mined within this our realm."


It would seem that this commission is still in force, for
the Charter of Justice of September, 1830, does not even
allude to it, nor has the Supreme Court established by
that charter any right to try offenccs committed at sea.




680 GIBRALTAR.


LAWS.(3)
The laws of England prevail at Gibraltar, sofar at least


as they are applicable to the circumstances of the co-
lony, The new Charter of Justice directs, as did those
which preceded it, that the courts established at Gibraltar
shall admínister the law, as nearly as may be, according
to the practice at W estminster-Hall.


GOVERNMENT.


In matters relating to the civil government, Gibraltar is
still treated as a garrison town. The Govemor is at once
the sole legislative and executive authority. His authority
in tbe former capacity , however, is very limited. The
Iaws of England are adrninistered by the courts, and any
alterations which it may be deemed necessary to make
in them are usually made by Orders in Council.


-


GIBRALTAR-CHARTER OF JUSTICE.


1st September, 1850.
WILLIAM THE FOURTH, by the grace of God, of the United King-
dom of Great Britain and Ireland King, Defender of the Faith, to all
to whom these presenta shall come, greeting: Whercas our royal
father and predecessor King George tbe Third, by. letters-patent under
the great seal of the United Kingdom of Great Britain ami Ireland,
bearing date at Westrninster tbe twelfth day of May, in the fifty-
seventh year of his reign, did erect and constitute a court of judi-
cature within the garrisou and tcrritory 01' Gibraltar, to be called by
the name of the COUTt of Civil Pleas at Gibraltar: And whereas
by the said letters-pateut provision was made for the administra-
tion of justice in the said garrison and territory, and it was thereby
declared that the said letters-patent should be and remain in force only
until bis said late Majesty, his heirs, and successors should be pleased
to alter, revoke, 01' determine the sarne : And whereas it is expedient
that the said letters-patent be revoked : Now know ye, that we have
revoked, and do hereby rcvoke, the befare mentioned lctters-patent and
every part thereof.


And whereas it is expedient that provision be made for the better


(3) See ante, p. 3 to 16, on the
general topie, how far the colonies are
subject to the law of the mother coun-


try, On the subjcct of Gibraltar par-
ticularly, see p. 15, n, (5).




GTBRALTAR-CHARTER OF JUSTICE. 681
and more effectual adrninistration ofjustice in our garrison and territory
of Gibraltar, and for that purpose one Supreme Court of J ustice, to be
holden therein in tbe manner and form hereinafter mentioned, should be
constituted : Now know ye, that we, of our special grace, certain know-
ledge, and mere motion, have thought fit to grant, direct, order, and
appoint, and by these presents do accordingly for us, our heirs, and
successors, grant, direct, order, and appoint that there shall be within
our said garrison and territory a court which shall be called "The Su-
preme Court of Gibraltar ;" and we do hereby create and constitute
the said Supreme Court a Court of Record. And we do further will,
ordain, and appoint that the said Supreme Court of Gibraltar shall con-
sist of, and be holden by and before one judge, to be called the "Judge
of the Supreme Court of Gibraltar;" and that the said judge shall be a
barrister in England 01' Ireland of not less than three years standing,
01' an advocate admitted to practise in our Court of Session in Scotland
by the space of tbree years; and the said judge shall from time to time
be nominated and appointed to such his office by us, our heirs, and
successors, by lettcrs-patent underthe great seal of the United Kingdom
of Great Britain and Ireland: And we do hereby declare, ordain, and
grant, tbat, upon the death, rcsignation, or sickness, 01' incapacity of the
said judge, 01' in case of bis absence frorn the said garrison and terrilory,
01' in case of any such suspension frorn office as hereinafter mentioncd
of any such judge, it shall and may be lawful to and for the Governor
of our said garrison and territory for the time being, by any instrument
to be by him for that purpose made and issued under the public seal of
the said garrison and territory, to norninate and appoint sorne fit and
proper person to act as and in the place and stead of any such judge so
dying 01' rcsigning 01' labouring under such sickness 01' incapacity as
aforesaid, 01' being so absent as aforesaid from the said garrison and ter-
ritory, or bcing so suspended, until the vacancy so created by any such
death 01' resignatiou, or sickness, 01' incapacity, 01' absence, 01' sllspen-
sion, shall be supplied by a new appointment, to be made in manner
aforesaid, by us, our heirs, and successors, 01' until tbe judge so becoming
sick o,' incapable, or being absent 01' suspended as aforesaid, shall re-
sume sueh his officc and entcr into tbe discharge of the dutics thercof':
And we do furtber will, ordain, and grant that the said judge shall
hold sucb bis office during our pleasmc: Providcd nevertheless that
it shall and may be lawful for the Governor of our said garrison
and territory for the time being, by any order to be by him for that pur-
pose made and issued under the public seal of the said garrison and
territory, upon the proof of the misconduct of any such judge as afore-
said, to suspend him from such his office and from the discharge of the
duties thereof': Provided that, in every such case, tbe said Governor
sball immediately report for our inforrnation, through one of our princi-




682 GIBRALTAR-CHARTER OF JUSTICE.
pal Secretaries of State, the grounds and causes of such suspension,
And we do further grant, ordain, and appoint that the said Supreme
Court of Gibraltar shall have and use, as occasion may require, a seal
bearing a device and impression of our royal arms within an exergue or
label surrounding tlle same, with this inscription, "The Seal of the Su-
preme Court of Gibraltar :" And we do hereby ordain, grant, and ap-
point that the said seal shall be delivered to and shall be kept in the
custody of the said judge; and in case of vacancy of 01' suspension from
the office of judge, the same shall be delivered over to and kept in the
custody of such person as sball be appointed by tbe said Governor of
our said garrison and territory to act as and in the place and stead of
the said judge : And we do further grant, ordain, and declare that the
said judge, so long as he shall hold his offiee, shall be entitled to and
have and receive such salary as shall be granted lo him by US, our
heirs, and successors, and that such salary shall be in lieu of all fces of
office, perquisites, emoluments, and advantages whatsoever ; and that
no fee of office, perquisite, ernolument, 01' advantages whatsoever other
than and except the said salary shall be accepted, received, or taken
by any such judge on any account or on any pretence whatsoever. And
we do further ordain, appoint, and declare that no such judge as afore-
said shaIl be capable of accepting, taking, 01' performing any other office
or place of profit 01' emolument within our said garrison and territory,
on pain that the acceptance of any such other offce 01' plaee as aforesaid
shall be and may be deereed in law, de facto, an avoidance of such his
officeof judge; and the salary thereof shall cease and be deerned to have
ceased accordingly from the time of the acceptance of any such other
office or place.


And we do hereby constitute and appoint our trusty and well-beloved
Barron Field, Esquire, to be the First Judge of the Supreme Court of
Gibraltar: And we do hereby ordain, appoint, and declare that there
shall be attached and belong to the said court such and so many officcrs
as to the judgc of the said court for the time being shall, from time to
time, appear to be necessary for the administration oí justice and the
due execution oí the powers and authorities which are granted and
committed (o the said court by these our letters-patent: Provided ne-
vertheless, that no new officer sha11 be created in the said court unless
the Governor of the said garrison and territory shall first signify his ap-
probation thereof to the said judge for the timc being, in writing, under
the hand oí such Governor. And we do further ordain and direct that
al! persons who shall and rnay be appointed to the offices of Registrar
or Prothonotary, and Master 01' Keeper of Records, or Marshal of the
said court, and that aIl persons who shall be appointed in the said court
to any offices to which the duties shal! corrcspond to those performed
by the Master 01' Prothonotary of any 01' either of our Courts of Record
at Westminster, 01' to the Sheriff of any county in England, shall be so




GIBRALTAR-CHARTER OF JUSTICE. 683
appointed by us, our heirs, and successors, by warrant under our or
their royal sign manual; and that all persons who shall and may be
appointed to any other office within the Supreme Court shall be so ap-
pointed by the Governor for the time being of the said garrison and
territory, And we do further direct and appoint, that the several officers
of the said court shall hold their respective offices during our pleasure.
And we do hereby authorize aed empower the said Supreme Court of
Gibraltar to approve, admit, and enrol, as barristers, advocates, solici-
tors, and attorneys, any persons who have been admitted as barristers
in England 01' Ireland, 01' as advocates in the Court of Session.of Scot-
land, or to the degree of Doctor oí Laws at our Universities of Oxford,
Cambridge, or Dublin, or as attornies or solicitors of any of our Courts
of Record at Westminster or Dublin, or as doctors in any Ecclesiastical
Court in England or Ireland, or as writers to the signet in Scotland, and
any persons who have been at any time heretofore admitted to practise
as advocates, barristers, attornies, solicitors, or proctors in the Court of
Civil and Criminal Justice heretofore existing in our said garrison and
territory. And we do further authorize our said Supreme Court to ap-
preve, adrnít, and cnrol, as such attornies, solicitors, or proctors as
aforesaid, such and so many persons as may be instructed, within our
said garrison and territory, in the knowledge and practica of the law, by
any barrister, advocate, attorney, solicitor, or proctor duly admitted to
practise in the said court; and which persons shall be so approved,
admitted, and enroHed, according to and in pursuance of any general
rule or rules of court to be for that purpose made in manner hereinafter
directed, And we do ordain and declare, that persons approved, ad-
mitted, and enrolled as aforesaid, shall be and they are hereby authorized
to appear and plead and act for the suitors of the -said Supreme Court,
subject always to be removed by the said Supreme Court from their
station therein, upon reasonable cause. And we do further ordain, that
DO person or persons whatsoever, not so approved, admitted, and en-
rolled as aforesaid, shall be allowed to arpear, plead, 01' aet in the said
Supreme COUl't, for 01' on behalf of any suitors in the said court. And
we do hereby further ordain, direet, and appoint, that the said Supreme
Court of Gibraltar shall have cognizancc of all pleas and jurisdiction in
al! causes, whether civil, criminal, or mixed, arisíng within the said gar-
rison and territory, with jurisdietion over all our subjeets and all other
persons whomsoever residing and being within the said garrison and
territory, save as hereinafter is excepted. And we do further give
and grant to the said Supreme Court of Gibraltar full power, authority,
and jurisdiction to judge and determine all questions there arising, ac-
cording to the laws now in force within our said garrison and territory,
and all such other laws as shall at any time hereafter be made and
established for the peace, order, and government thereof by us, our




684 GIBRALTAR-CHARTER OF JUSTWE.
heirs, and suceessors, with the advice and consent of Parliament, 01' in
our 01' their Privy Couneil, 01' by the Governor of Gibraltar for the time
being. And we do further give and grant to the said Supremo Court
íull power, jurisdiction, and authority to review the proceedings of all
inferior eourts of justiee within our said garrison and territory, and, if
neeessary, to set aside 01' eorreet the same. Provided always that nothing
herein contained shall extend 01' be eonstrned to give to the said Su-
preme Court any authority to review the proeeedings of any court mar-
tial holden within the said garrison and territory. And we do further
ordain, direct, and appoint, that, in any criminal case depending before
the said Supreme Conrt, the trial of the party 01" parties aceused shall
be before the judge of the said court and a jury of twelve men, who shall
concur in every verdiet to begiven on the trial of any sueh aceused
party 01' parties; and every sueh verdict shall be delivered in open court
by the mouth of the foreman of every such jury, and shall be thereupon
reeorded and read over to such jury before they are discharged from
attendance on the said court. Provided also, and we do further direct
and appoint, that all issnes of fact arising in civil suits 01' actions de-
pending in thc said court, shall be tried and decided by the said judge
and three assessors, to be appointed as hercinafter mentioncd, until
otherwise provided for by law; and that the verdiet of the said judge
and assessors on the trial of any such issue shall be according to the
majority of votes; but if sueh votes should be equally divided, then
according to the opinion of the said judge; and every such verdict
shall be delivered in open court by the mouth of the said judge. And
in al! cases where the sum 01' matter at issue in any such suit 01' action
shall exceed 01' be of the value of 'more than .floo sterling, British
money, the said judge shall canse the evidence on every such trial as
aforesaid to be taken down in writing by the clerk 01' other proper
officer in open court, in the presenee of the witnesses respectively
giving the same, and the evidence so taken shall be entered upon the
proceedings of the said court and be of record; and in every case in
which any appeal shall be made and allowed under the provisions of
this our chárter, from any judgment of the said court, copies of all do-
cuments and papers which shall have been produced and given in
evidenee, shall be certified and transmitted by the said cIerk 01' other
proper officer as authentic; aud also copies of any documents and
papers which shall have been produced and tendered in cvidence and
rejected, shall, if required by the party producing the same, be in Iike
manner authenticated, but marked by such officer as aforesaid as re-
jccted, in order that all such copies may be annexed to the record as
part thereof in case of appeal. AmI we do further direct and declare,
that it shall be lawful for the judge, on the application of either of the
parties, plaintiff 01' defendant, at 01' before the trial of any issue joined




GIBRALTAR-CHARTER OF JUSTICE. 685
in any civil suit 01' action commenced in the said court, to permit the
evidence on such trial to be recorded and certified as aforesaid, a1though
the sum or matter at issue may be less than .f100 sterling; provided
that it shal! be made to appear to such judge that such judgment, de-
cree, order, or sentence, which may be given, made, al' pronounced in
such suit al' action, may be of such importance as to render it proper
that an appeal sbould be permitted. And we do further ordain and
direct, that no judgment 01' sentence of the Supreme Court, in any cri-
minal case, whereby any person shall be condemned to death 01'
transportation, or banishment from the said garrison and territory, shall
be carried into execution until a report of al! the proceedings upon any
such trial hath been laid before or transmitted to the Governor of the
said garrison and territory by the judge presiding at any such trial, and
until such Governor shall have authorized and approved the execution
of such sentence. Provided always, that no oflicer, soldier, al' other
person in actual payas a member of the garrison, sha11 be arrested, im ,
prisoned, 01' taken in execution, without leave of, the Governor of the
said garrison and territory first obtained in writing for that purpose,
Provided always, and we do hereby further will and declare, that in
case any action or suit shall be begun, instituted, or prosecuted against
any officer, soldier, or other person, in payas a member of our garrison,
to recover damages for any trespass, assauIt, battery, or other violence
01' wrong committed, 01' alleged to have been committed, by him 01'
them, 01' for any damage 01' injury whatsoever, not being a matter of
debt, account, 01' contract, 01' relating to any right al' titie to any lands,
houses, tenements, or hereditaments, 01' any interest therein, it shal! be
Jawful for the Governor for the time being of the said garrison and ter-
ritory, at his discretion, by order under his hand, to suspend such pro-
ceeding, and to arder the staying thcreof at any time befare judgment,
01' to stay and suspend any execution from issuing upon any such judg-
ment; and upondelivery of such arder to the registrar of the said court,
al' to the person acting as registrar of the said court, a11 such proceed-
ings shall cease and be stayed until such order shall be revoked by the
Governor for the time being, saving to the plaintiff al' plaintifís, in any
such action 01' suit, a11 such suits and remedies as he, she, 01' they may
be 01' would have been entitied to institute in England al' elsewhere out
of the said garrison and territory of Gibraltar, if the said action 01' suit,
so stayed, had not been there commenced. And we do hereby also fur-
ther ordain and direct, that in cases in which any oflicer, so1dier, 01'
other person in actual payas a member of the garrison shall have been
arrested, imprisoned, 01' taken in execution, with the leave of the Go-
vernal' as aforesaid, it shall be nevertheless lawful for the Governor for
the time being, by un order in writing signed by him, afterwards to
order and direct, that such offícer, soldier, 01' other person shall be dis-




686 GlBRALTAR-CHARTER OF JUSTICE.
charged from such arrest, imprisonment, 01' execution ; and the offieer
01' gaoler, in whose eustody such officer, so1dier, 01' other person shall
happen to be, is hereby authorized, empowered, and commanded forth-
with, upon the reeeipt of such order, to discharge him out of custody.
And we do hereby ordain and direct, that such discharge under such
order shall not be deemed an escape from the custody of such officer 01'
gaoler, but that such arder of discharge shall be and be taken to be an
indemnity to sueh officer 01' gaoler for such discharge, And we do
hereby further ordain and direct, that in all such cases the Governor for
the time being who shall have signed such order of discharge, shall
forthwith state and deliver, in writing, to the said judge, his reasons for
having issued such order of discharge, and shall transmit a copy thereof
to us through one of our principal Secretaries of State. Provided always,
that such discharge from imprisonment shall in no degree release the
party so discharged from the debt on account of'which his body had been
taken in execution, And we do further grant, ordain, direct, and ap-
point, that it shall and may be lawful for the said judge, by any rules 01'
orders of court to be by hirn from time to time for that purpose made
and published, to frame, con-titute, and establish such rules,orders, and
regulations as to him shall seern meet, touching and concerning the
time and place of holding the said Supreme Court, and touching the
forms and manner of proceeding to be observed in the Supreme Court,
and the practice and pleading upon aH actions, suits, and other matters,
both civil and criminal, indictments and informations to be therein
brought, the appointing of commissioners to take bail and examine wit-
nesses, the examination of witnesses de bene esse and allowing the same
as evidence, the proceedings of the marshal and other ministerial officers
of the said court, the process of the said court and the mode of executing
the same, the fees and emoluments to be demanded and taken by the
advocates, attornies, and officers of the said court, the summoning, im-
pannelling, and challenging of juries, the admission of barristers, advo-
cates, attornies, solicitors, and proctors in the said court, and touching
and conceming all such other matters and things necessary for the pro-
per conduct and despatch of business in the said Snpreme Court ; and
all such rules, orders, and regulations from time to time to revoke, alter,
amend, 01' renew, as occasion may require. Provided always, that no
such rules, orders, and regulations shall be repugnant to this our
charter, and that the same shall be so framed as to promote, as far as
may be, economy and expedition in the despatch of the business of the
said Supreme Court ; and that al1such rules and forms of practice, pro-
cess, and proceeding shall, so far as the circumstances of the said gar-
rison and territory may permit, be framed with reference to the
eorresponding rules and forms in use in our Courts of Record in West-
minster; and that the same be drawn up in plain succinct, and com-




GIBRALTAR-CHARTER OF JUSTICE. 687
pendious terms, avoiding al! unnecessary repetitions and obscurity, and
promulgated in the most public and authentic manner in the same gar-
rison and territory for three months at least before the same shall opérate
and take effect. Provided always, that all sueh rules, orders, and regu-
lations shall forthwith be transmitted to us, our heirs, and successors,
under the seal of the said court, for our 01' their approbation, correction,
01' disallowance. And whereas it may be expedient and necessary to
make provision respecting the qualification of jurors and assessors to
serve in the said court, and the mode of enforcing the attendance of
such jurors and assessors ; and it may also be expedient and necessary
to make provision for the extension of trial by jury in the said Supreme
Court, in civil cases: Now we do further ordain, direct, and appoint,
that it shall and may be lawful for the Governor for the time being of
our said garrison and territory to make and establish al! such laws,
statutes, and ordinances as to him may seem meet.respecting the mat-
ters aforesaid, which laws, statutes, and ordinances shal! forthwith be
transmitted to us for our approbation, correction, 01' disallowance. And
whereas it may be expedient to establish within our said garrison and
territory Courts of Request, and other courts having jurisdiction in civil
cases of smaIl arnount 01' valuc, and in cases of crimes 01' offcnces not
punishable with death, transportation, 01' banisliment : Now we do
hereby authorize and empowel' the Governor for the time being of our
said garrison and territory, by any laws and ordinanees to be from time
to time made for that purpose, to erect, constitute, and establish aíl such
Courts of Request and other courts having jurisdiction in civil and cri-
minal cases within our said garrison and territory: Provided that the
jurisdiction of such civil courts shall not be extended to any case
wherein the sum 01' matter in dispute shall exceed the amount or value
of .f40 sterling money, 01' wherein the title to any lands 01' tenernents,
01' any fee, duty, 01' office may be in question, 01' whereby rights in fu-
ture may be bound; and provided also that the jurisdiction of such
courts in criminal cases shall not be extended to any case wherein any
person may be accused of any crime punishable by death, transporta-
tion, 01' banishment from the said garrison and territory, And we do
hereby authorize and empower the said Governor, by and with the ad-
vice of our said judge for the time being, to make, ordain, and establish
all necessary rules, orders, 01' regulations respecting the manner and
form ofproceeding, and the mode of trial of offenders in any such last-
mentioned courts, and respecting the manner and form of carrying the
judgments and orders of such courts into execution, and al! such other
rules, orders, and regulations as may be necessary for giving fuIl and
perfect effect to the jurisdictiou of the said courts, And we do hereby
grant, ordain, and direct, that it shal! and may be lawful for any per-
son 01' persons, being a party 01' parties to any civil suit or action de-




688 GIBRALTAR-CHAltTER OF JUSTlCE.
pending in the said Supreme Court of thc garrison and territoryof
Gibraltar, to appeal to US, our heirs, and successors, in our or their
Privy Council, against any final judgment, decree, or sentence of the
said court, or against any rule or order made in any such civil suit or
action having the effect of a final or definitive sentence ; and which
appeals shall be made subject lo the rules, regulations, and limitations
following, that is lo say, in case any such judgrnent, decree, order, or
sentence shall be given 01' pronounced for or in respect of any sum or
matter at issue aboye the amount or value of .f300 sterling, 01' in case
such judgment, decree, order, or sentence shall involve, directly or in-
directly, any claim, demand, or question lo or respecting property, or
any civil right, arnounting to or of the value of .f300 sterling, the person
01' persons feeling aggrieved by any such judgment, decree, order, or
sentence of the said Supreme Court, may, within fourteen days next
after the same shall have been pronounced, made, or given, apply to
the said Supreme Court, by petition, for leaveto appeal therefrom lo
us, our heirs, and successors, in our or their Privy Council ; and in case
such leave to appeal shall be prayed by the party or parties who is or
are directed to pay any surn of money, or perform any duty, the said
Supreme Court shall and ís hereby empowered lo direct that the judg-
ment, decree, order, or sentence appealed from shall be carried into
execution, or that the execution thereof shall be suspended pending the
said appeal, as to the said court may in each case appear to be most
consistent with real and substantial justice. And in case the said Su-
preme Court shall direct such judgment, decree, order, or sentence to
be carried into execution, the person or persons inwhose favour the
same shall be given, shall, before the execution thereof, enter into good
and sufficient security, to be approved by the said Supreme Court, for
the due performance of such judgment or order, as we, our heirs, and
successors shall think lit to make thereupon ; or in case the saíd Su-
preme Court shall direct the exccution of any judgment, decree, order,
or sentence to be suspended pending the said appeal, the person or
persons against whom the same shall have been given shall in like man-
ner, and before any order for the suspension of any such execution is
made, enter into good and sufficient security, lo be approved by the
said Supreme Court, for the due performance of such judgment or order
as we, our heirs, or successors shall think lit lo make Ihereupon; and
in all cases we will and require that security shall also be given by the
party or parties appellant, to the satisfaction of the Supremo Court, for
the proseeution of the appeal, and for the payment of all such costs as
may be awarded by us, our heirs, and successors, lo the pal'ty or porties
respondent; and if such last-mentioned security shall be entered into
within three months from the date of such petitions for leave to appeal,
J;hen, and not otherwise, the said Supreme Court shall allow the ap-




GlBRALTAR-CHARTER OF JUSTICE. 689
peal, and the party 01' parties appellant shall be al liberty lo prefer and
prosecute his, her, 01' their appeal lo us, our heirs, and successors, in
our or their Privy Council, in such manner and undcr such rules as are
observed in appeals made lo us from our plantations 01' colonies. And
we do hereby reserve lo ourselves, our heirs, and successors, in our or
their Privy Council, full power and authority, upon the humble petition
at any time, of any person or persons aggrieved by any judgment 01'
deterrnination of the said Supreme Court, to admit his, her, 01' their
appeal therefrorn, upon such othcr terms, and upon and subject to such
other Iimitations, restrictions, and regulations as we 01' they shall think
fit; and to reverse, correct, 01' vary such j udgment 01' determination as
to us 01' them shall seem meet. And it is 0111' further will and pleasure
that in all cases of appeal allowed by the said Supreme Court, or by us,
our heirs, and successors, the said court shall certify and transmit to us,
our heirs and successors, in our or their Privy Council, a true and
exact eopy of all evidence, proceedings,judgments, decrees, and orders,
had or made in such causes appealed, s~ far as the same have relation
to the matter of appeal, such copies to be certified under the seal of the
said court. And we do further direct and ordain that the said Supreme
Court shall, in all cases of appeal lo us, our heirs, 01' successors, con-
form to and exeeute such judgments and orders as we or they shall think
fit to make in the premises, in such manner as any original judgment,
decree, 01' decretal order, 01' rule of the said Supreme Court of the gar-
rison and terrilory of Gibraltar could 01' might have been executed. And
we do hereby strictly charge and command aH Governors, Commanders,
Magistrates, Ministers, civil and military, and all our liege subjects
within and belonging to the said garrison and territory, that, in the
execution of the several powel's, jurisdictions, and authorities hereby
granted, made, gíven, 01' created, they be aiding and assisting and
obedient in all things, as they will answer the contrary at their peril,
Provided always that nothing in these presenta contained, 01' any act
which shall be done under the authority thereof, shall extend 01' be
construed lo extend to prevent us, our heirs, and successors from re-
voking these presents 01' uny part thereof, 01' from making such fur-
ther 01' other provisión, by lctters-patent, for the administration of jus-
tice, civil and criminal, within the said garrison and territory, and the
plaees now 01' hereafter at any time to be annexed thereto, as to us,
our heirs, and suecessors shall seem fit, in as full and ample a manner
as if these presenta had not heen made, these presents or any thing
therein eontained to the contrary in anywise notwithstanding. And we
do further ordain and direct that the Governor of our said garrison and
territory, upon the arrival therein of these presenta, shall by proclama-
tion notify to the inhabitants of the said garrison and territory the time
when the said courts hereby established will be open i and as soon as


yy




690 GIBRALTAR-CHARTER OF JUSTICI?.
the Judge of the said Suprerne Court shall have assumed and entered
upon the exercise of his jurisdietion therein, then and from thenceforth
the Court of Civil Pleas now established within the said garrison and
territory, and the Court of Appeals now established within the same,
and al! other courts, civil and criminal, shal! be absolutelyabolished,
cease, and determine; and every suit, action, complaint, matter, 01'
thing, civil and criminal, which shall be depending in such last-mentioned
eourts respectively, shall and may be proceeded upon in the Supremo
Court instituted under and by virtue of these presents ; and all pro-
ceedings which shall hereafter be had in such action 01' suit, 01' other
matter, civil or criminal, respectively, shall be conducted in like man-
ner as if such action or suit, 01' other matter, civil or criminal, had been
original1y commenced in the said Suprerne Court instituted under these
presents: and al! the record s, muniments, and proceedings whatsoever,
of and belonging to the said Courts of Civil and Criminal Justice, and
to the said Court of Appeals respectively, shall, from and immediately
after the opening of the said Supreme Court instituted by these presents,
be delivered over to and deposited for safe custody in such place, and
be thereafter kept by such persoo as our Governor shalI appoint; and al!
parties concerned shall and may have recourse to the said récords and
proceedings, as to any other record s and proceedings of the said court.
And we do hereby further declare and direot, tbat during the absence
from our said garrison and territory of the Governor thereof, 01' if there
shall be no person commissioned by us, our heirs, and successors to be
the Governor of our said garrison and territory, then, and in every such
case, al! and every the powers hereby granted to and vested in the Go-
vernor for the time being of the said garrison and territory, shal1 and
may be executed by and vested in the Lieutenant-Govcrnor thereof, 01'
the officer for the time being having command of the troops. In wit-
ness whereof we have caused these our letters to be made patent,
Witness ourself at Westminster the first day of September in the first
year of our reign.


By Writ of Privy Sea!.
BATHURsT.


-


ORDER IN COUNCIL-BANKRUPTCY.


AN Order in Council was passed on the 12th October, 1832, to confirm
an ordinance made by the Lieutenant-Governor of the garrison of Gi-
braltar, on the 19th September, 1832, "in exercise of the powers vested
in him in that behalf by IIis Majesty's commission," by which ordinance
he "made provision" for putting in force within the garrison and ter-
ritory of Gibraltar the laws of England relating to bankrupts,




GIBRALTAR-ORDER IN CüUNCIL. 691
This ordinance, in the first section, recited the expediency of putting


in force these laws, and then declared them to be in force within the
garrison and territory of Gibraltar.


The second section declared "that all the powers by the said laws of
England relating to bankrupts given to, and duties thereby directed to
be performed by the Lord Chancellor, the Court of Bankruptcy, and
the Court of Review, 01' by any Judge 01' Judges ofthe said courts, save
where such judge is authorized to exercise the powers given by the said
laws to any Commissioners of the Court of Bankruptcy, shall and may
be exercised and performed by the Supreme Court of Gibraltar."


The third section declares that the commissioners (not exceeding
three in number) are to be appointed by the person exereising the go-
vernment, and "that all the powers by the said laws given to, and
duties thereby directed to be performed by any one or more Cornmis-
sioner 01' Cornrnissioners of the Court of Bankruptcy, shall and may
be exercised 01' perforrned by the person 01' persons so appointed a Com-
missioner 01' Commissioncrs of Bankrupt, in manner above mentioned;
and all the powers by the said laws given to, and all the duties thereby
directed to be performed by a sub-división court consisting of three como
missioners, shall and may be exercised and performed by one Commis-
sioner of Bankrupt, provided tbere be not more than one Commissioner
competent lo act, 01' by Iwo Commissioners, provided there be not more
than two Commissioners eompelent to aet under and by virtue of the
appointment and commission hereinbefore mentioned. Provided
always, that no single Commissioner shall have power to commit any
bankrupt 01' ot1ler person examined before him otherwise than to the
care and euslocfy of a messenger 01' otbcr officer of the Supreme Court,
to be by him detained in his custody and to be brought up berore a
Sub-división Court 01' the Supreme Court within three days after such
commitment, for which purpose one of such courts shall be fortbwith
summoned, and to which court such examination shall be adjourned."


Any barrister, attorney, 01' solicitor appointed a Cornmissioner may
still continue to practise, " provided always, that no person shall act as
a Commissioner of Bankrupt and as a barrister, solicitor, or attorney in
one and the same cause, malter, 01' thing."


The duties of the Secretary of Bankrupts, Master in Chancery, and
Registrars of the Court of Bankruptcy are to be performed by the Re-
gistrar of the Supreme Court, 01' other person appointed by the Go-
vernor.


The persons to be appointed official assignees are to be merchants,
brokers, or accountants, 01' persons who are 01' havc been engaged in
trade in the cities of London, Westrninster, Liverpool, 01' Bristol, 01' in
the garrison and territory of Gibraltar, "and in all cases in which any
part of the estate and effects of any hankrupt shall be required to be


YY2




692 GIBRALTAR-ORDER IN COUNCIL.
transferred, delivered, or paid by tite offieial assignee into the Bank of
England or elsewhere, or to be set apart in the hands of the Aeeountant-
General of the High Court of Chaneery, sueh estate and effects shall be
retained in the hands of the offícial assignee or otherwise, and shall in
al! respeets be subjeet to such order, rule, and regulation for the keeping
of the aeeount of the said estate and effccts, and for tite eustody, invest-
ment, payment, or other disposition thereof, as the J udges of the Su-
preme Court of Gibraltar shall from time to time think fit to directo"


By the sixth sectiori no person is liable to become a bankrupt unless
he be a natural born subjeet of His Majesty, 01' have resided two years
in Gibraltar.


The seventh and eighth sections relate to fees to be paid to the Re-
gistrar.


By the ninth seetion " al! issues direeted 01' allowed by the said laws
relating to bankrupts, for the trial of every matter offaet by a jury, shall
be tried by the said Judge of the Supreme Court and three Assessors, 01'
by the said Judge and a jury of twelve men, in the same manner and
under and subjeet to al! and singular the provisions and eonditions
established and in use for the trial of other issues of faet by the said Su-
preme Court."


By the tenth section "al! appeals from any final judgment, decree,
01' sentenee of the Supreme Court, touehing any matter relating to
bankrupts, or against any rule or order made in any such matter having
the effect of a final or definitive sentenee, shal! be to His Majesty, bis
heirs, and sueeessors, in his 01' their Privy Couneil, subject to the rules,
regulations, and limitations preseribed by IIis Majesty's letters-patent
bearing date at Westminster on the 1st day of September in the first
year of his reign, for appeals against any final judgment, deeree, 01'
sentence of the Supreme Court, 01' any rule 01' order having the effect of
a final 01' definitive sentence.'


The limitations as to time fixed in certain instanees by the bankrupt
laws of England, are by seco 11, adopted with them at Gibraltar.


The general rules and orders "madI' by the Judge of the Supreme
Court 01' Gibraltar, under and by virtue 01' the said laws relating to
bankrupts,' shall be forthwith transmitted to His Majesty for his appro-
bation.


By the thirteenth seetion "al! the rights, privileges, and powers used,
exercised, and enjoyed by any of His Majesty's Courts at Westminster,
01' by any Judge 01' Judges thereof, relating to bankrupts, shall and may
be used, exercised, and enjoyed by the Supreme Court 01' Gibraltar, ex-
eept as it is by this ordinanee otherwise provided." •


By the fourteenth seetion "a publieation in the Gibraltar Chroniele
shall be deemed and taken to be a publieation in the London Gazette




GIBRALTAR-ORDER IN COUNCIL. 693
01' any other newspaper, for aU the purposes of the said laws relating to
bankrupts."


By the fifteenth section this ordinance was not lo take effect lill His
Majesty's pleasure was known.


On the 12th October, 1832, it reeeived His Majesty's confirmation.


Practice of the Courts,
The rules and regulations of the Supreme Court recite the Charter of


Justice of the 1st September,1830, by which the Supreme Court was
established and was invested with jurisdiction in all causes, civil,
criminal, 01' mixed, with power tó review the proceedings of all inferior
courts of justice; and also letters-patent of the 2d Match, 1832, by
which the court was invested with jurisdiction in all testamentary cases,
and in a\l cases of the administration of intestates' estates; and also the
Order in Council of the 12th October,1832, by which the court was
investsd with the power of the Lord Chancellor in matters relating to
bankrupts, Tbey then declare that, in pursuance of the directions con-
tained in the Chárter of Justice, the followiug rules and regulations ha ve
been established :-


Terms.-There shall be three terms in each year, the court to sit at
least every Tuesday during the continuance of each of the terms.


The first term is to continue during the months of January, Fcbruary
and March ; the second during those of May and June; and the third
during those of September, October and November.


There must be at least two criminal sessions in each year, to como
menee on 01' about the 1st of June and the 1st of December in eaeh
year.


The court may also sit in vacation if business shall requireit,
The civil practice of the court, whether in its legal 01' equitable juris-


diction, shall be simply by petition, answer, 01' demurrer ; and (if ne-
cessary) replication and joinder in demurrer, and rejoinder, addressed
to the honourable the Judge of the Supreme Court.


In the equitable proceedings of the sarne court the proceedings are
to be as in England, except that witnesses are to be examined and cross-
exarnined viva voceo


Judgme71ts.-The party in whose favour any final judgment, decree,
01' sentence of the court, in any civil action 01' suit, has been given,
where by law there can be no appeal to His Majesty, 01' where there
being such right ofappeal, no application for such appeal is made within
the time appointed for so doing, may at his own risk and without leave
sue out cxecution.


Notice of the sale of property scized must bc given at least one week
before the sale in the Gibraltar Chronicle.


Barrister's.-The practitioners in the Supremo Court shall appear and




694 GIBRALTAR-ORDER IN COUNCIL.
plead indiscriminately aa barristers, advocates, attornies, solicitors, and
proctors, and cvery such person must be admitted, sworn, and enrolled
by tbe court, upon petition stating his compliance with the regulations
of tbe chartcr upon that subject, and his qualifications so to be admitted.


The fees of tbe practitioners are regulated by the Governor.
Prosecutions-The indictments and informations in this court shall be


exhibited and filed '01' not by His Majesty's Attorney-Gcneral in his
discretion; but any party may move the court for a criminal inforrnation
according to the practicé of the Court of King's Bench in England, 01'
carry an indictment rejected by the Attorney-General before the grand
jury, at his own cost and responsibility, agreeably to tbe practice of the
Courtsof Oyer and Terminer and General Gaol Delivery in England.
The rest of the practice to be conformable to that which prevails in tbe
before mentioned courts, as nearly as circumstances will permito


Tbe general rules made in the English courts under the act 11 Geo.4,
and 1 Wm. 4, c.,70, are adopted so far as tbey are not repugnant to tbe
practice of the Supreme Court.


Bankruptcy.-The general rules and practice of bankruptcy in Eng-
land are, by an order dated 15th February, 1833, made the rules and
practice in the Bankruptcy Court at Gibraltar, and all future rules to
be made by the Bankruptcy Court in England, so far as they are appli-
cable, are to be the rules of the court at Gibraltar.


Persons are to be chosen to act as official assignees, and in each case
the commissioner is to appoint the official assignee. Each officia\ as-
signee is lo givehond for the due performance of his office,himself in
the sum of .f600, and two suretics in sums to the like amount. He
shall pay over to the registrar all such sums of money as shall come to
his hands so soon as they shall amount to &100.




( 695 )


HELIGOLAND.


-


HELIGOLAND is an island which líes on the coast of Hol-
stein, at nearly an equal distance from the mouths of the
Jahde, the Wesel', the Elbe, the Eider, and the Hever.
It is said by sorne to derive its name, whích signifies Holy
Island, from its having been the seat of the worship of the
goddess Phoseta, who was adored by the Sicambri, while
others suppose the name originated in the early conversion
of the island to Christianity, It draws nearIy its whole sup-
ply of provisions from the main land, except when a flight
of thrushes, snipes, larks, 01' woodcocks happens to alight
upon the island, and then the inhabitants immediately
commcnce the destruction of them, and forget every other
occupation so long as the game is to be found. Even if
assembled in church when the game arrive, the congrega-
tion rush out immediately with their pastor at their head,
and this sport of necessity is begun without delay.


The island is sub-divided into the Cliff and Lowland,
the smaller island called the Down, and several sand banks
and rocks, of which that called the Monk is the most con-
spicuous. The Clitf is a eontinued rock of sandstone
almost perpendicular, the ascent to which is by a long
flight of steps, and its circumference is about 4000 paces.
The Clitf is said to be constantIy diminishing from the
action of the waves, and the Lowland to be as constantly
increasing. They are joined together by a bottom of rock
about 500 paces long. The circuit of the whole island
does not exceed two miles and a half Heligoland has
two good harbours, and to the east of the Down is a road
where vessels may anchor in forty-eight feet water. The
inhabitants, in number aboye QOOO, subsist chiefly by fish-
ing and acting as pilots. The women cultivate barley and
oats and attend to the few sheep that are fed on the pas-
tures of the upper grounds. The public buildings are
placed on these upper grounds; on the lower grounds
there are only fishermens' huts. There are two wells of




696 HELIGOLAND.
fresh water, but scarcely a tree 01' a shrub of any kind on
the island. Turf, wood, fuel, and garden vegetables are
brought from Cuxhaven and Hamburgh in exchangc for
fish.


The island formerly belonged to the crown of Den-
mark, but was taken from the Danes by a small squadron
in September, 1807, and eonverted into a depot for the
merchandise, which, in spite of Napoleon's decrees of ex-
c1usion, was smuggled into evel'y part of thc contincnt.
At the general peaee it was retained by EngIand. The
Governor and garrison have been withdrawn since the
war, and a commandant only resides there as the British
eonsul. The people govern themselves.-Edin. Gazette,
Eney. Brit. Supp. and Eney. Metr.




( 697 )


JERSEY.


-


TIIE lsland of Jersey is the most easterly of the islands in
Sto Michael's Bay, is situated between Cape la Hogue in
Normandy and Cape Forhelles in Brittany. lts distance
from Weymouth, the nearest port in England, is seventy-
five miles, and from the nearest French ports seventeen
miles. It is considered as for sorne purposes forming
parce1 of the county of Hanis, and in ecclesiastical mat-
ters is incorporated with the see of Winchester.


The climate is exceedingly mild and the soil of a light
but prolific quality,


The population is estimated at about 30,000. St. He-
lier's is the capital of the ísland.


Sto Helier's possesses a public library, instituted at the
expense of the Reverend Philip Falle, the historian of the
island and one of the chaplains to Wm.3. English is
familiarly spoken, but the Norman French is still the lan-
guage of the pulpit and of the eourts of justice.


HISTORY AND CONSTITUTION.


These islands became part of the dominions of England
when William the Conqueror established himself on the
English throne, The government is now vested in a Go-
vernor and Assembly. The Governor is appointed by
the King, ofwhom he is the representative, His peculiar
duty is to attend to the fortresses and the military defences
of the island.
, The assembly consists of the Bailiff and twelve jurats,


the dean and eleven rectors, and the twelve high consta-
bIes of the island, aided by His Majesty's Attorney and
Solicitor-General. There is a slight difference in the
number of votes as the body sits in the States of Delibera-
tion 01' States of Election.


The States of Deliberation approach nearest to our
Parliament, as they consider and decide all matters affect-
ing the general weal, assess taxes, and inspect the publie




698 JERSEY.
accounts. The States cannot, except in cases of emer-
gency, impose any new tax without previously obtaining
the consent of the King.


The chief duty of the States of Election is to decide on
contested returns of jurats, who are always chosen by the
people. When a vacancy in the list occurs notice is duly
issued to the district, and on Sunday, at the close of ser-
vice, the rector states to the congregation the occasion
which calls for the exercise of their elective franchise, A
proper person is then put in nomination. When the re-
turn is contested the ultimate decision is Ieft to this Ge-
neral Assembly, which differs from the deliberative body
onJy in having a few additional popular votes.


CONVENTION OF THE ESTATES.


This Convention is composed of the jurats 01' courts of
justice as the Iirst and noblest body, the dean and clergy
as the second, and the twelve high constables (one elected
by each parish), as the representatives of the commons.
The King's Procurator, the Viscount, and the King's
Advocate, though they represent no estate, are also ad-
mitted propter dignitatem. This Convention cannot meet
but upon summons by the Governor, who has a negative
voice in it, The Bailiff is the speaker of the Convention.
N o estates can be held without at least seven of each
body, and no foreigner preferred to a benefice in the
island can be a member of the Convention till he is natu-
ralized. By an order in Council of the reign ofJames I.
(1619) it is ordered, that the states shall not meet except
upon being convened by the Governor, "with this quali-
fication, that if the Bailiff 01' justices shall require an
assembly of the states, the Governor shall not defer it
aboye fifteen days, except he have suchcause to the con-
trary either in respect to the safety of the island or our
special service otherwise, as he wiII answer to us 01' the
Lords of our Council, whereof he shall give as present
advice as possibly wind and weather rnay serve."


The great business of these states is to levy money for
the public service, and in sorne other respects it assumes
pow~rs resembling those of the Parliament of England.-
Falle, c. vii.; Ency. Metro.


The Bailiff is the chief officer of justice in the island,
and holds irnmediately by patent from the King. He




JERSEY. 699
aets in eonjunction with the jurats, who are twelve in
number,


The Jurats, who exercise duties of a mixed nature,
being at once judges and legislators, are chosen by the
people, one for each parish in the island, Falle (c. iv.)
thus describes the election :-" Upon a vacancy the court
issues a writ of election, fixing the day, which is always
a Sunday, and appointing one from their own number to
eolleet the votes. The writ is delivered to the minister,
who, after divine service, reads it from the pulpit, setting
out usually in a short speeeh the duties and obligations
incumbent on those that aspire to that magistrature, and
recommending the people to ehoose the man most fitted
by his talents and virtues for such an office. The people
give their votes at the church door as they go out, and he
that has the majority throughout the island is declared
duly elected, Without the verdict and opinion of these
twelve the Bailiff cannot pronounce. In case of inequality
of opínions, he is bound to follow the majority. But he
has the choice betwixt opinions equal in number.'


COURTS.


There is but one court of judieature, yet, because
matters are of more 01' less moment, 01' require different
methods of proeeeding, this court is distinguished into
four classes 01' courts. The first is called the Court of
Inheritanee, which is opened at the beginning of every
term, and decides on questions arising in respeet of real
property. The second is the Court of Catel, 01' chattels
and movables, in which actions upon simple contracta
may be tried, but the principal business of which is the
adjudication of decrees, 01' the legal settlements of claims
upon insolvents. 'I'he third eourt is the Extraordinary
Court, which was established to assist the Court of Catel,
when the causes in that court beeame too numerous for it,
'I'he Extraordinary Court decides upon arrears of rent
not exceeding ten years, arrests, distrainings, &c. &e.
The fourth is the Saturday Court, whieh is also an extra-
ordinary and subsiduary court, and properly but a braneh
of the former. In term time it is appointed prineipally
for the King's causes, and out of term for causes of bre-
vity which admit of no delay, as causes of admiralty,




700 JERSEY.
causes betWM'1 merchants, breaches of the peace, &c.-
Falle's Account of Jersey, c. 4.


The officers of the court are the Procurator and Advo-
cate, 01' the Attorney and Solicitor; the Viscount 01' She-
riff; the Greffier 01' Clerk; six Advocates 01' Solicitors at
the bar j two Denunciators 01' Under-sheriffs, and an
Usher.


The court is a royal court, having cognizance of all
pleas, real, personal, mixed, and criminal, treason and
some other casus nimis ardui (1) excepted, which are re-
served to the King in Council,


Appeals may be brought before the Council from judg-
ments 01' decrees, in matters of civil property aboye the
value of 300 livres toumois. N o appeallies in criminal
cases.


In criminal matters every crime is first investigated by
a petty jury, seven of whom must concur to find a pri-
soner guilty. The prisoner is allowed an appeal fram
thcir decision to la Grand Enquete, which consists of
twenty-four persons. Five votes out of this number is
sufficient to acquit,


To decide questions relating to the inheritance of real
property, the court must consist of five jurats at least,
and in matters relating to chattels of the value of aboye
50 livres tournois of three jurats; and from these Hes an
appeal to the Court of Judgment, consisting of not less
than seven members j and again from them, if the matter
in dispute amount to 40s. of freehold, 01' ,;[40 of personal
property, to the King in Counci!. Up to the reign of
Elizabeth the justices in eyre were sent annually 01' tri-
ennially to Guernsey and Jersey to hear appeals from the
courts of ordinary jurisdiction, Commissioners were af·
terwards sent at intervals for the same purpose, and were
invested also with extensive powers to examine the state
of the law, supply defects, correct inaccuracies, and re-
trench what the deliberate assembly deemed superfluous.
This custom however ceased with the reign of James I.


The Ecclesiastical Court consists of a dean and eleven
rectors presiding over the twelve parishes of the island.
The dean is empowered to grant proba te of wills, and to
exercise the powers of a consistory court, The island
was placed un del' the see of vVinchester hy Queen Eliza-
beth by an order in Council, dated 11th March, 1568.


(1) Constit' Johannis Hegls, Art. V.




JERSEY. 701


LAWS. (1)
Conformably to an Order in Couneil of the date of the


21st May, 1679, and communicated to thc states on the
3d day of July following,


The laws and privileges of the island are confirmed
as aneient and established, and no orders, warrants 01'
letters of what nature soever, shall be of force in the
island until after having been presented to the Royal
Court in order to be there registered and published,
and in case such orders, warrants 01' letters shall be
found contrary to the charters and privileges of the said
island 01' burthensome to it, the registration, execution
and publication, may be suspended by the court until the
case shall have been represented to His Majesty, and his
good pleasure taken thereon. And as to aets of parlia-
ment in which the island is mentioned, and in which it
it interested, they must be exemplified in form under the
great seal of England, and sent into the said island and
therc enregistcred and publishcd, in order that the in-
habitants may have knowledge thereof, that they may
conform themselves thereto, and avoid the penalties of
offending against them.-Code of Jersey, 159, 160.


The laws whieh govern these islands are the ancient
customs of Normandy as contained in Le Grand Coutu-
miel', 01' in La Somme de Mancel, municipal and local
usages of the island, ordinances made by the Kings of
England 01' by commissioners royal, and Orders in Council.
N o aet of parliament affeets these islands, unless they are
particularly named therein. (2) The following aeeount of
the jurisdietion of the English courts in these islands is
taken from Hale's History of the Common Law,


Mich. 1,2 Edw. 2, Rot. 45, coram Rege. A great com-
plaint was made by petition against the Deputy-Governor
of those islands for divers oppressions and wrongs done
there. This petition was by the Chancellor delivered into
the Court of B. R. to proceed upon it, whereupon there
were pleadings on both sides; bllll'because it appeared
to be for things done and transaeted in the said islands,
judgment was thus given :-" Et quia negotiam preedict'
in curia hic terminari non potest, eo quod juratores in-


(1) See ante, p.3 lo 16 on this subject. (~) 4 Inst, c.70, pp. 286,287.




702 JERSEY.
sulre prredict' eoram' justiciariis hic venire non possunt,
nec de jure debent, nec aliqua negotia infr~lsula prre-
dicta emergentia terminari non debent, nisi secundum
eonsuet' insulre prredictre. Ideo recordum retrotraditur
Cancellario ut inde fiat eommissio Domino Regis ad ne-
gotia prredicta in insula preedicta audienda et terminanda
secundum eonsuet' insulre prredietre."


And accordingly, 14th June, 1565, upon a report from
tbe Attorney-General, and advice with the two Chief
Justices, a general direction was given by the Queen and
her Council, that aH suits between the islandcrs, al' where-
in one party was an islander, for matters arising within
the islands, should be tbere heard and determined.


But still this is to be taken with tbis distinetion and
limitation, viz, that where the suit is immediately for thc
King, thcn the King may make his suit in any ofthe
eourts here, especially in the Court of King's Bench,
For instanee, in a quare impedit brought by the King in
B. R. here for a ehurch in those islands, so in a quo
uiarranto for liberties there j so a demand of redemption
of lands sold by the King's tcnant within ayear and a
day, according. to the custom of Normandy; so in an in-
formation for a riot, or grand contempt against a governor
deputed by the King. These and the like suits have been
maintained by the King in this Court of King's Bench
here, though for matters arising within those islands.
This appears Paschre, 16 Edw. 2, Coram Rege, Rot. 82 j
Mich. 18 Edw. 2, Rot.123, 124,125; and Pase. 1 Edw.3,
Rot.59.


And for the same reason it is, that a writ of habeas
corpus lies into those islands for one imprisoned there,
for the King may demand and must have an account of
the cause of any of his subjects' loss of liberty, and there-
fore a return must be made of this writ, to give the Court
un account of the cause of imprisonrnent; for no liberty,
whether of a county palatine 01' other, holds place against
those brevia mandataria, as that great instance of pu-
nishing the Bishop of Durham for refusing to cxecute
a writ of habeas corpus out of'the King's Bench, 33 Edw.1,
makes evident,


PECULIAR LAWS.


Insolvency.-In cases of insolvency the debtor files an
affidavit of his insolvency in the Cohue Royale, (al' place




JERSEY. 703
of judicature), and at the same time hands in a schedule
of his debts and of his means of satisfying them. Four
public proclamations are then made at certain intervals,
and upon the fourth the creditors come in. The judge,
commencing at the bottom of the list, calls upon the last
creditor, and asks him if he is willing to receive the pro-
perty of the insolvent into his hands, and undertake to
satisfy the demands of all the other creditors, Ir he re-
fuses, his name is erased from the list of creditors, and the
same offer made to the next in succession, and the same
consequence accompanies a refusal, till some creditor,
from the number struck off thinks he can safely under-
take the task of settlement.-Falle's Account, p. 111.


This is the description of the mode of proceeding given
by Mr. Falle, and adopted by modern writers in their
account of the customs of the island. Mr. Falle's book
was published in 1694, and in it he expressed (c.iv. p. 108)
a strong wish that the public might have the advantage of
having theír laws "collected, methodized and digested
into a system 01' code." This wish was not gratified till
nearly 80 years afterwards, when a small volume entitled
" ACode of Laws for the Island of Jersey," was pnb-
lished, with a confirmation and ratification of the work by
the Privy Conncil, dated on the ]8th March, 1771. In that
code is the following statement of the law as to the proof
to be given by the debtor of his means of satisfying the
claims of his creditors.


The debtor who shall cIaim to put his effects into the
hands of the court, in order to procure time to arrange
his affairs, shall not be permitted to do so till after having
satisfied the court that they are sufficient to discharge his
debts; and in that event he shall he bound to produce an
exact statement of all his effects, real and personal, and
to lodge at the same time with the secretary all his books
of account, bills, bonds, papers, &c. verified by oath, in
order that they may be referred to in case of necessity.-
Code of Laws, QQ1.


LIMITATIONS.


Three years of interruption or discontinuance of claim
in heritable matters, and one year in possessory matters,
shall ~a sufficient prescription.-Code, 168.


.Any person, after having peaceably and without inter-
raption, enjo}'ea alJl'jng fOJ·ty years any immoveable pro-




JERSEY.


perty, shall not be disturbed in reganl to the ownership
of the thing possessed ; the possession for that period
giving a perfect and uncontrovertible right according to
the ancient custom of the island.s--Dode, 223.


REGISTRATION OF DEEDS.


Deeds and hypothecations are subject to registration,
under pain of being considerad private, and of having
no effect over others posterior in date. Such deeds to
have no effect whatever if not registe red within six months
of their date.-Code, 278, Q79.


A bond is considered a sort of hypothecation of the
real and personal property of the obligor, and binds the
heir whether he is named 01' not.-Falle, 86.


Rate of Interest.-Conformably to the ordonnance esta-
blished by the act of the court relating to heritage, of the
date of the Q3d September, 1714, the interest of money
shall not exceed 5 per cent., on pain of the offenders
being considered usurera, and punished accordingly.-
Code, 128.


Choses in Action.-These are not assignable.-:-Code,
171.




( 705 )


GUERNSEY.ALDERNEYANDSARK.
-


GUERNSEY is an island situated about 13! miles north-
west of Jersey. lt is of a triangular form, about nine
miles long, and six in its greatest breadth. Its circum-
ference is about 39 English miles. The soil and climate
are good, and though the land generally slopes down-
wards to the north, it produces excellent crops of every
kind.


HISTORY AND CONSTITUTION.
In its history and constitution this island very much


resembles Jersey.-See Hale's Ristory of the Common
Law, 183 et seq. and 4 Inst. c. 70.


The first regular settlement of Guernsey appeal'S to
llave heen effected in 962 by some Benedictine monks,
The lands of which they took possession were erected
into a fief by Robert Duke of Normandy, father of
William the Conqueror. Under the reign of his son,
Sampson D'Anneville obtained the grant of a large seig-
nory, and established the feudal system and other institu-
tions existing in the rest of William's dominions. This
sort of government was howevcr almost abolished by
King John, who established by charter a court consisting
of twelve [ursts.


The Governor has at present the care and custody of
t\\(~ casúes, fortifications, &c., anñ his jurisniction ex-
tends over all the channel islands, except Jersey. The
duties of bis office are perforrned by a Lieutenant-Gover-
nor, appointed by commission from the crown,


The Assembly, called the States of the Island, is only
he1d on particular occesions. Under tbe name oi tue
States of Election, it appoints the magistrates and the
sheriff. 'Y\.c mem\le.rs cmnposing the States of Election
are the Bailiff, Procureur and twelve Jurats; the eight
Rectors of the island; the two Constables appointed for
('.'<.\.d.\. ~{ dw.(en \\a:rí."h.e,,; the. twe.hre Dau'Zll.uieN, iu eadl,
excepting the town anu tbe vale, the former returning
twenty, the latter sixteen, making altogether the number
of 174. In this Assembly the Governor 01' his Lieutenant


r. z z




706 GUERNSEY.
has no vote, and the Bailiff presides as speaker. When
money is to be raised, the chief local authority convenes
the States of Deliberation, an assembly consisting of
thirty-two members, formed by the Bailiff and Procureur,
the twelve Jurats, the eight Hectors, and the Constables
and Douzaniers of the General Council, who in this as-
sembly amount only to ten. The taxes and subsidies, when
out of the ordinary course, must be sanctioned by the King
in Council befare they can be levied.


The island forms part of the see of Winchester, under
the jurisdiction of which it was placed by Queen Eliza-
beth. The Dean holds the Bishop's Court as surrogate,
and has the power of granting speeial licenses for the
solemnization of prívate marriages. The island is divided
into ten parishes, four of which however form two unions,
so that there are but eight rectors,


Sto Peter's Port is the capital of the island, In 1821 it
contained above 11,000 inhabitants, the population of the
whole island amounting at that time to nearIy 21,000.


ALDERNEY is about eight miles in circumference, it is
nearer Normandy than Guernsey, and is remarkable for
its strait, called the Race of Alderney, so fatal to ship-
pingo


SARK is about five miles in length, and not three bread.
Its cliffs on all sides render it almost inaccessible.


Alderney and Sark are under the jurisdiction of the
Governor of Guernsey.


There is in Alderney a bailiff and other officers of
justice, from whom there lies an appeal to the courts at
Guernsey.


Sark is under the same kiud of government as Alder-
ney.


The laws of Guernsey are very nearly the same as
those of Jersey. Under the head of " Courts" will be
noticed the principal differences between them,


LAWS.


Courts-Appeals, ~·c.
On the 11th September, 1815, a commission was issued


to G. S. Holroyd, H. M. Dyer, and William Bolland,
Esquires, to examine into the laws in force between debtor
and creditor in the Island of Guernsey. The comrnis-
sioners in their report, which is dated on the 2d of May,




GUERNSEY. 707
1816, give the following account of the courts of the
island :-


"The Royal Court is understood to have been erected
by a royal charter in the .reign of King John for many
puhlic purposes, and for the arrangement of the inter-
nal affairs and police of the island, and appears to be
possessed of considerable powers and privileges. It is
\~'>.<e 'i>'0\<e \()cal tribunal before which alllegal controversies
are carried for determination. It consists of the Bailiff
(named by the King) and twelve Jurats, out of which
number one Jurat is always appointed by the Bailiff to be
his Lieutenant or representative in his absence, hut who
is not distinguished from his brother Juratswhen the
Bailiff himself is present N o assembly of the court can
be complete without the Bailiff or his Lieutenant. There
are three terms in ayear, each of which continues six.
weeks, It sits occasionally also in vacation. During the
terms four Jurats are assigned to attend in court in rota-
tion, though two of them, with the Bailiff 01' his Lieute-
tenant, are sufficient to constitute what is termed an
Ordinary Court. before which all causes are brought in
the first instance,"


From the decision of this court a party was entitled to
appeal to a eourt called "The Court of Appeal, 01' Cour
d'Appel devant plus de Jurés." This eourt was, upon
the recommendation ofthe eommissioners, abolished.


A further and final appeal lay to the Court of Judg-
ments, in which not less than seven Jurats must sit, toge-
ther with the Baíliff 01' his Lieutenant, This appeal was to
be prosecuted within ayear and a day. Nine days in eaeh
year were set apart for these appeals. From the deter-
minations in the Court of Judgments the final appeal lies
to the King in Council.


The report of the commissioners has recommended seve-
ral important alterations in the law of debtor and creditor,
and especially the abolition of the "Retrograde Offer,"(1)
but the Royal Court with most patriotie zeal defended
their ancient customs, and the result was, that the Retro-
grade Offer was not to be abolished, but a change was
made in the mode of carrying it into effeet. By an Order
in Council dated 13th May, 1823, the Cour d'Appel de-


(1) For a descriptlon of this proceeding, see the head "Insolvency" in the
accolllIl of Jersey, ante; Pi 702.


zz2




70S GUERNSEY.
vant plus de Jurés was abolished, and it was ordered,
" that in appeals from the Ordinary Court to the Court of
Judgments no depositions in writing should be taken, nor
any appeal allowed where the sum in dispute did not ex-
ceed 150 livres tournois; that appeals to the King in
Council should be confined to cases where the object in
dispute, if real property, should amount to the value of
cflO.sterling per annum, or, if personal property, of f200
sterlmg; and such appeals should be prosecuted within
six months from the date of the judgment complaincd
of."(2)


The order then went on to declare, "that no arrest of
the person be permitted for any sum under f5 sterling,
and that it be in all cases founded on an affidavit taken
befare the bailiíf, Iíeutenant-baíIíff, or befare any one jurat
of the court; and that all persons, whether fondés en héri-
tage(3) or not, be equally liable to arrest for debts due
on promissory notes, bilis of exchange, or other negociable
securities.


"That if it be made a requisite qualification of bail,
whether fondés en héritage or not, that he prove himself
possessed of sufficient property over and aboye the pay-
ment of his own just debts to answer the demand of the
plaintiff, one-half of which property shall be real estate
within the island.


" That the privilege claimed by those who are fondés
en héritage oí having their goods exempted from attach-
ment be abolished."


Bankruptcy.-By another Order in Council of the 20th
December, 1825, it was among other things provided, that
the locallaws of bankruptcy should be applied "to na-
tives and others received as inhabitants according to the
usual forms, and aH His Majesty's subjects resident in the
island ayear and a day."


(2) A subsequent communieation
from the Bailirf of Guernsey stated,
that there was anuther mode of ap-
peal, against tbe evils of which this
order did not afford a remedy ; this
was " the appeal by Doleanee, which
by an Order in Council uf the 27tll
June, 1627, is granted to every pero
son giving bail to pay costs and :f10
tu the poor," It was suggested tbat
this sum of 1:10 should be raised
to .f40 or .f50, to be forfei ted to the


respondent on failure of the appeal.
This excellent suggcstiou does not ap-
pear tu have been adopted,


(S) EtmdGs en hérüage, that is,
possessed of real property, wbieb in
Guernsey means lands or houses, or
rents issuing therefrorn, The posses-
siun of Ibis property entitled the pos-
sessor to many valuable prlvíleges,
some of whieh were abolished by this
and another Order in Council,




GUERNSEY. 709


Registration.


Contracts are registered within this island, and gene-
rally have priority according to the date of their registra-
tion.


Most eommonly in eonveyances of houses or lands,
whether by way of absolute sale, or "giving for ever to
rent," (4) the grantor does not sign the deed himself, but
goes before two or more of the jurats, and there acknow-
ledges it to be his act and deed, whereupon the jurats
sign it, and it is 'then registered, and at the next seal-
day it is sealed with the seal of the island j and the
same may be done for any other deeds, Debts under
private signature are not to be enroIled until they have
been acknowledged before the Bailiff or his Lieutenant
and two Jurats, and they will then take place from the
date of such acknowledgment and enrolment j and in the
event of the debtor "renouncing his estate" (becoming
bankrupt) wiII have preference over other debts not so
enroIled.-Warburton's Treatise, edit. 1822.


Deecent,
Real estate cannot be devised by wilI, but must de-


seend to the heirs, aeeording to the custom of the island.
Children born out of wedlock are deemed legitimate, if


their parents afterwards marry.


Criminal Matters.
In all criminal matters, except those of treason, coining,


and striking the Bailiff or Jurats in the execution of
their duty, the Court of Guernsey has full and absolute
authority to hear and determine according to the laws
and customs of the island, and to give sentence accord-
ingly, from which sentence there lies no appeaI.


Law Officers.
The law officers of the crown in Guernsey are the


Procureur de Roi, or Attorney-General, and the Con-
troIler, or Advocate-General; and these offices are gene-
rally filled by members of the oldest families in the island,


(4) That is, tbe owner lels tbe land for ever, paying yearly so much rent
to anotber to hold to bim and his heirs as tbey can agree foro




710 GUERNSEY.


Commercial Regulatione.
The following important regu1ation gave the Channel


Islands a right to enjoya direet trade with the East Indies
in the article of tea. 3 & 4 Wm.4, e. 101, s, fl. And be
it further enacted, that it shaIl be lawful to import any
tea into any of the islands of Guernsey, Jersey, Alderney
01' Sark, from the Cape of Good Hope and the plaees
eastward of the same to the Straits of Magellan, 01' from
the United Kingdom, and not from any other place, in
sueh and the like manner as if the same were set forth in
an aet passed in the present session of parliament to re-
gulate the trade of the British possessions abroad.




( 711


-


MALTA, anciently Melita, is an island in the Mediterranean
nearly opposite to the southern extremity of Sicily. It lies
in about the 36th degree of north latitude, and the 14th
and 15th of east longitude. It is distant sixty miles from
Cape Passaro, the nearest point of Sicily, 190 from Spar-
tivento in Calabria, and about 200 from Calipia, the
nearest point of Africa, Its length is twenty-one miles,
its breadth eleven, its circumference sixty. Together
with Gozo, from which it is separated by a strait four
miles wide, it contains about 100 square miles of super-
ficial extent. The soil ís very thin, great part of it having
been braught from Sicily, and the inhabitants daily labaur
to add to its amount by breaking up the surface of the
stony rock into a sort of gravel and mixing it with the
resto


There are two towns in Malta, Valetta, the present ca-
pital, and Medina, known also as Cittá Vechia, The
harbour of Valetta is double, and is one of the flnest in
the world. The city is built on a narrow tongue of land,
having the eastle and light of Sto Elmo at its extremity,
and an admirable port on eaeh side.


The island of Gozo, 01' Gaudisch as the natives eall it,
is eight miles long, six miles broad, and twenty in circum-
ferenee. Though thinly inhabited it contains no town
but has six vilIages and a strong fort in the eentre of the
island.-Eneye. Metr.; Mace. Dict. of Comm, 2d ed,


HISTORY.


Malta was first known as having been ruled by an Afri-
ean of the name of Battus, who was an enemy of Queen
Dido, and subdued by the Carthaginians. From them it
fellinto the hands of the Romans, and the Saraeens severed
it from tbeir empire, Roger, the Norman King of SiciIy,
having in his turn expelled tbem, it remained attached to
the Sicilisn monarchy (a diploma oi Lo~is VII.} in 1350}


/ft




7]~ MALTA.
having united Malta and Gozo to the dominions of Sicily,
and having declared that he was their Lord Suzerain,) till
the Emperor Charles V. gave it to the Knights of StoJohn,
after their expulsion from Rhodes. The French became
masters of it in 1798, and the inhabitants having in 1800
risen upon and blockaded the French, and having been
afterwards assisted by the English and Portugueze fleets,
the French Governor finalIy surrendered to the English
commander. It was captured after a long blockade on
the 5th November, ]800. It had been stipulated by the
treaty of Amiens, that thcse two islands were to be deli-
vered up to their original sovereign ¡ but various difficul-
ties having been opposed by the then French government
to the fulfilment of the treaty, and in the mean time a new
war having been commenced in 180~, these dependencias
have continued, and by the treaty of Paris on the 30th
May, 18]4, became permanentlyannexed to the British
crown.e--Galt's Travels in the Mediterranean¡ Cockburn's
(~eneral) Voyages ¡ and Colonel Colquhoun's British Em-
pIre.


The resident population of both islands amounted in
1831 to 12,000. 'rhe revenue, according to Mr. Col-
quhoun, is equal to .i'lOO,OOO. Mr. M'Culloch adds,
that the expenditure, exclusive of that incurred in Eng-
land on account of the island, amounts to about .i'88,OOO.
The shipping was said to equal 4,000 tons, and the ex-
ports and imports amounted each to about cf2,000,000¡
but that estimate was made at a time when the island was
used as one of the depóts of manufactures intended to be
introduced into the continent of Europe, in contravention
of Napoleon's decrees.-Ency. Metro. ¡ M'Culloch's Dict.
Como


CONSTITUTION.


The following account of the constitution of the Islands
of Malta and Gozo is taken from a pamphlet, entitled
"Authentic Materials for a History of the People of
Malta," composed, as its title page announces, by "Wil·
liam Eton, Esq. Superintendant-General of the Quaran-
tine and Public Health Department in Malta." Mr. Eton
appears to have been strongly inelined to favour the call
of the Maltese for a popular constitution, his authority
therefore may perhaps be questioned, but his assertions
of fact are generally supported by references to the origi-




MALTA. 713
nal documents, and there is little reason to believe that his
opinions were suffered to influence his statements. His
pamphlet contains the best account of these dependencies
that it has been the fortune of the author to meet with,


The Maltese appear to have in general enjoyed the
blessings of a free constitution.


Their liberties were secured principal!y by the institu-
tion of a Consiglio Popolare, 01' Assembly of National
Representatives.


The time when this body was first instituted cannot be
precisely ascertained, but is supposed to be as early as
the year 1090.


This Consiglio Popolare was a permanent represen-
tation of the whole people. Its existence and functions
are acknowledged and confirmed by al! their Suzerains.


The gradual encroachments on its rights and privileges,
and its final suppression by the Grand Masters, were the
principal causes of the disaffection of tbe Maltese, and
of the many conspiracies which were Iormed to subvert
their usurped power.


Consiglio Popolare.
In the Consiglio Popolare resided the whole legislative


authority.
It not only nominated the members of the executive


government for the management of ordinary affairs, but it
watched their conduct, and had the power of controlling
and displacing them,


The appointment of the principal officer of govern-
ment, the Capitano, received the saction of the Suzerain.
The powers of this officer have varied at different pe-
riods, but they were always limited, Sometimes he has
been nominated solely by the Suzerain, sometimes by the
Maltese; but the more general and constitutional practice
seems to bsve been so 811bmit to the Suzereus the names
of three persons, from whom he made his choice.


AH important matters were decided by the Popular
Council.


The Jurats, as the administrators of public property,
were dependent on this body, and were nominated by it.
It took care of the commercial interests, and superin-
tended the operations oí the Universitá ; and whenever it
became necessary nominated procurators, syndics, &c.


It appointed ambassadors to sovereigns to negociate




714 MALTA.
on public affairs, and to the Suzerains to ask favours al'
make complaints, it being tbe particular duty of the coun-
eil to defend the popular rights and privileges,


It deputed from its own body a certain number of per-
sons of probity, of the first and second c1asses, (of which
the Consiglio,..popolare was always composed) to form a
Consiglio Particolare, which was annually elected by Seru-
tinio, the new public officers or ministers, the election of
whom belonged to the citizens, agreeably to their most
ancient privileges.


The Serutinio mean s a court that is held annually on
September 27th to appoint proper persona to hold offices.
The appointment of all public officers was only for one
year, when others were appointed in their placea. The.
Grand Masters, and since them the British Civil Com-
missioners, have latterly arrogated this power to them-
selves.


The public officers thus nominated were, both in Malta
and Gozo, the Jurats and Treasurer of the Universitá
(who compose that magistracy), the Acataponi, who were
then of the first families, latterly they are a kind of assist-
ant in the markets and in the affairs of the Universitd,
the judges, criminal and civil, the superintendant of the
city ramparts, and other public edifices, the commissaries
of the public health department, and the procurators of
the hospital and public places.


It seems that the Consiglio Popolare sometimes deputed
the Universitá (or Jurats) to exercise the functions of the
Consiglio Particolare, and elect the judges, &c. by scru-
tinio.


The Consiglio Popolare was by the Sicilians, and by
the Maltese themselves, frequently called the Council of
the City, Cittá Vecchia (Medina, or Cittá Notabile) by ex-
cellencc called The City.


The Capitano di Virga (who was the royal officer or
sheriff of the island) was prohibited from entering the
Consiglio Popolare whenever he had any interest in the
business to be treated of He could only be a principal
gentleman or a noble. He was forbidden to have any pri-
vate prison of his own, and when he arrested persons, he
was bound to deliver them to the public prisons, He was
generally the military commander and minister of the
King. He was often styled the Captain of the City.
Valetta was not then built,




MALTA. 715
The Castellano, or Governor of the Marine Castle, had


no right to interfere in the affairs of the Universitá or of
the city; nor had he, as Castellano, any jurisdiction be-
yond the ditches of the fort,


The annual officers were made by mastra and scrutinio
by a majority of votes.


Mastra was the golden book or register of noble and
distinguished familíes. Some time after the government
of the Grand Masters had been established this book
disappeared. None were eligible but those whose names
were inscribed in this book.


N o new duty 01' tax could be collected without the con-
sent and order of the Consiglio Popolare; and it seems
that the consent of the Suzerain was also necessary, at
least to taxes of importance.


The Consiglio Popolare was abolished in 1775, but it
had long ceased to be the representation of the people.
The Grand Master latterIy had put into this office his
own creatures, whom he removed at his pleasure, giving
no reason,


With respect to the persons who composed the Con-
siglio Popolare, it appears by aneient records, that before
the coming of the order of St. John,and many years
afterwards, this body was composed of a certain number
oí persons of families of the first and second classes, and
the representatives of towns (casal) elected by the people,
who were called constables (contestabili, conetables). The
jurats and all other officers of popular election had a seat
in the Consiglio Popolare on general affairs,


And when there was a question which related to the
general interest of the nation, and in which the clergy
had any concern, the vicars, bishops, and the priests,
representatives of the cIergy, were also admitted.


Strangers domiciliated five years, and married to Mal-
tese women, were frequently admitted members of council
by an act of the council itself.


The offices of captain, of judge, civil and criminal, of
jurats and of acatapano, could not be held by merchants
or artisans,


Gozo. 11. t


This island was governed in every respect the same as
Malta. It had its own Consiglio Popolare, and every
other officer similar to those in Malta.




'H6 MALTA.
The people of Gozo could not any more than those of


Malta, be cited to appear before any tribunal out of their
island, except in cases of high treason against the Suze-
rain, or upon feudal questions.


Courts-Laws.
The tribunal of Valetta was composed of a castellano


(a knight); a criminal and civil judge; a fiscal and deputy-
fiscal; an advocate and pro-advocate of the poor; a pro-
tector of prisoners (a knight); two notaries are actuaries
and writers; a grandvisconte 01' sheriff; and captains 01'
officers of police with their assistants.


There were similar tribunals in Citta Notabile, the ca-
pital.


From the sentences of these judges an appeal lay to
the Judge of Appeals, and from his sentence there was
a second appeal to the Judge Surrogate, whom generally
the Grand Master deputed, on the petition of the con-
demned 01' cast, as judgment was not considered to be com-
plete without three concurring sentences, which formed a
final and conclusive judgment.


The Grand Master then confirmed, revised, altered 01'
annulled the sentence, or even augmented the punisbment
adjudged by the sentence; of which there was an in-
stance in the time of Pinto, not many years ago, now in
the records of the tribunal of Valetta. This Grand
Master ordered by his sign manual, which constituted a
Iaw, certain thieves to be hanged, who had been by three
concurring sentences condemned to be banished to Sicily,
and they were executed.


To the Judge of Appeal were referred also causes ap-
pealable from the Government Court of Gozo; from the
office of First Appeal at Cittá Notabile; from the office
formerly called Siniscalia, (Sénéchals Court, which had
exclusive jurisdiction ayer all persons belonging to the
palace, to the custom-house, and to the Universitá) j from
the consolato del mare, (a commercial court,) and other
subaltern tribunals.


In capital causes and those of high crimes, (delitti
gravij, the three judges (criminal, civil and judge of ap-
peal) were joined; they met in the apartments of the
castellano, and decided the causes, which were argued
and defended by the Fiscal and the Poor's Advocate.




MALTA. 717
The judges, instead of salaries, received the penalties


and taxed fees for sentences, &c., which altogether formed
a considerable sumo


Though this is the formation of the tribunals, the code
of Rohan and the laws since made by the decrees of
Hompesch, by Sir Alexander BaH as Governor for the
King of the Two Sicilies, and by Messrs. Cameron and
Ball, as Civil Commissioners, are nevertheless the only
rule of justice and the lex scripta actually in force.


A new code of Jaws, under the title of Dritto Munici-
pale di Malta, was published upon the sole and, as it
seems, usurped authority of the Grand Master Rohan,
who had just before made use of a popular sedition as
a pretext for utterly abolishing the Consiglio Popolare.


In difficult cases where these laws are obscure or insuf-
ficient, recourse is had to the writings of Italian doctors
of law, where cases more to the point have been decided.


When the Judges did not agree in their opinion, the
Grand Master or the Civil Commissioners decided of them-
selves, or took the opinions of their lawyers.-Authentic
Memoirs.


A Supreme Court of Justice now exercises the highest
judicial functions in the island, and the Chief Justice of
this tribunal is appointed by the crown. S~e post, 721.


Coroner.
The Criminal Judge executes the functions of an En-


glish coroner. When information is brought to him of
a crime being committed, he proceeds to the place and
takes an inquest.


The Judge having taken an inquisition, 'causes such
persons to be sent to prison as are accused or suspected.
He examines witnesses one by one, the fiscal, advocates,
writers, &c. being present, with the doors open or shut,
as he shall think proper. Sometimes he examines them
privately in a room. Their testimony is taken down in
writing, and the witnesses sign it, The manner of exa-
mination and the questions put to them, depend entirely
upon the .Iudge, no one having a right to interfere.


From the documents the Judge forms what is called
compilazione di processo.


The Judge of Appeals and the Judge Surrogate have
only their papers to guide them. They cannot dispute
the facts as stated by the Criminal Judge, nor can they




718 MALTA.
examine witnesses, 01' proceed on any other grounds with-
out an express order from the Grand Master, 01' at present
from the Civil Commissioners.


Fiscal.
He is to see that the Judge takes an inquest immedi-


ately, to furnish the Judge with witnesses, and what is
necessary to prove delinquency, whether the suit be by
application of parties 01' by inquisition; he is to be with
the Judge in every act, judicial 01' extra-judicial, respect-
ing the merits of every criminal cause. He takes inquisi-
tions, &c. in the absence 01' sickness of the Judge The
tribunals of Cittá Notabile and of Gozo are constituted
much in the same manner.


Castellano.
The President 01' Castellano holds an office almost


merely nominal. He is like the Fiscal to see that justice
be administered with promptitude,


There exists also another court 01' council, which has
in all times been unpopular, called Signatura; the mem-
bers are properly the Privy Councillors of the Grand"
Master, and are now those of the Civil Commissiouer,
theyare styled Uditori, To this council are delivered
petitions complaining of injustice 01' delays,or for obtain-
ing offices 01' places under government, praying for sus-
pension of proceedings, and various other cases. In fine,
there are scarcely any limits to the affairs which may not
come before this council in the form of petitions.


The number of the Uditori is in general four 01' five.
They are men of the law by profession, 01' ecclesiastics, 01'
gentlemen who have studied the law, They rank before
the tribunals.


The Uditori hold their places during pleasure, and
they are are often changed.


This council, properly constituted, would be a check
upon the tribunals,


Tite Unioersitá.
This assembly, once the supreme magistracy, and still


called "The Magistracy," has at present only a lirníted
jurisdiction in the police of the markets. Jt is composed
of four 01' fíve Jurats (Giurati) and a Treasurer, There




MALTA. 719
formerly was a fund belonging to the Universitá, from
which it paid interest to those who put their money into
it, but the Freneh seized this fund, and ruined many fami-
lies.


The Jurats supply the island with corn, wine and oil.
N o one is aIlowed to sell those articles in the island be-
sides the Universitá j they fix the price at which they
sell, with the approbation of the Civil Commissioner.
The profits arising from the sale of corn produces a consi-
derable annual revenue to government, for whose account
the purehases and sales are now made. There ought
always to be two years' provisions in Malta.


Appeals.
Byan order in Couneil of the 18th December, 1834.,


regulations were made for appeals from the decisions of
the Supreme Council of J ustice to the King in Council.
The foIlowing are the important parts of the order,


"Whereas by the law at present in force in the isle of
Malta and its dependencies, no provision for permitting
and regulating appeals from the Supreme Couneil of Jus-
tice in and for the said island and its dependencies, and
it is necessary to make provision for regulating sueh ap-
peals; it is therefore hereby ordered by Bis Majesty by
and with the advice of his Privy Council,


"That any person being a party 01' parties concerned
in any cause, suit 01' action depending, 01' which may here-
after be commenced 01' brought in 01' befare the Supreme
Council of Justice in the said island of Malta, may ap-
peal to Bis Majesty, his heirs and successors, in his 01'
theír Privy Council, in such manner, within sueh time,
and subject to such rules, regulations and limitations as
are hereinafter mentioned .


•• In case any judgment, de cree, arder, 01' sentence for
01' in respect of any sum 01' matter at issue aboye the
amount 01' value of 1:1000 sterling, 01' in ease sueh judg-
ment, decree, arder, 01' sentence shaIl involve directly 01'
indirectly any c1aim, demand 01' question to 01' respecting
property, 01' any civil rights amounting to 01' of the value
of <C1000 sterling, the person 01' persons feeling aggrieved
by any sueh judgment, deeree, arder, 01' sentenee of the
Supreme Council of Justice, may, within fourteen days
next after the same shaIl have been pronounced, made 01'
given, apply to the said Supreme Council of Justice by




720 MALTA.
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 shaIl be prayed by
the party 01' parties who is 01' are directed to pay any
SUl11 of money 01' perform any duty, the said Supreme
Council of Justice shall and is hereby empowered either
to direct that the judgment, decree, order 01' sentence
appealed from shall be carried into execution, 01' that the
execution thereof shall be suspended during the said ap-
peal, as to the said Supreme Council of Justice may ap-
peal' to be most consistent with real and substantial jus-
tice."


The usual provisions as to security to be given by the
parties for the performance of the order of the Privy Coun-
cil, if the execution is directed to be executed 01' to be
stayed, are then made, and security is also directed to be
.given by the appellant for the due prosecution of the ap.
peal and the payment of costs, The last-mentioned secu-
rity must be entered into "within one month from the
date of such petition for leave to appeal," and "then
aud not otherwise the said Supreme Council of Justice
shall allow the appeal."


The usual reservation is then inserted, of p(lwer by the
crown to admit the appeal "upon such terms and subject
to such limitations, restrictions, and regulations as His
Majesty, his heirs and successors, in his 01' their Privy
Council, shall think tít."


In cases where appeals are alIowed, the Supreme
Council of Justice is directed to certify and transmit a
true and exact copy of aII evidences, proceedings, judg-
ments, decrees and orders had 01' made in such causes
appealcd, so far as the same shall have relation to the
matter of appeal, such copies to be certified under the
seal of the said council.


The Supreme Council of J ustice is lastly directed "to
conform to and execute 01' cause to be executed such
order 01' orders as shaII be made in the premises by His
Majesty, his heirs and successors, in his 01' their Privy
Council, in such and the same manner as any original
judgment, sentence 01' order of the said Supreme Council
of Justice would 01' might have been executed."


By a decree of the Supreme Council pronounced on
the l27th July, 1829, in a case then pending of application
for leave to appeal, the amount of security to be given for




MAI,TA. 7~1
the due prosecution of the appeal, and thc payment of
costs, was limited to J:~OO.


The Supreme Council, upon the reading of the ap-
plication for leave to appeal, orders a citation to issue to
the other party to show cause why lcave to appeal should
not he granted. Upon the said citation hoth parties are
heard, and the Supreme Council grants 01' refuses leave
according to law. Both parties agree as to the copies of
the proceedings that are to be transmitted,


SALARIES OF PUBLIC OFFICERS.


The following account of the salaries of public officers
has been inserted, as it gives at a recent date sorne idea
of the nature of the tribunals existing at Malta. The
author has not been able to learn whether the recom-
mendations of the commissioners here noticed have 01'
have not been carried into effect.


On 1st November, 1830, a report was presented on the
revenue and expenditure of Malta.


In the course of this rcport the commissioners recom-
mended that the Commercial and Bankrupt Court should
be consolidated with the Civil Court: that there should
he hut one local court of appeals for all civil causes, and
that a Chief Justice and four other Judges should form
the judicial establishment of the island. And further, that
there should be but one Crowu Advocate, and one Advo-
cate for the POOl', and four Magistrates for the inferior
jurisdiction. - House of Commons' Papers, December,
1830, No. 64, p. 11.


The Lieutenant-Governor has .i'4000 a-year.
The Chicf Justice, who is also a judge of the Vice-


Admiralty Court, J,'1500 ayear. J::. s.
4 Puisne Judges* each 428 O
1 ------t 350 O
1 -----t . 308 10
1 Joint Crown Advocate 192 18
1 Dittoj- . . . . . 150 O
1 Advocate of the POOl' 83 7
1 Dittot 42 12


• Recommended by the cornmis- t Recommended tu Le diócuntinll·
sloners lo be reduced in number, und c.L,
lo receive a salary of í450 each,


3A




7Q2 MALTA.


Inferior Court.
This court is composed of one Magistrate, who is also


Coroner, and receives a salary of .i'342 18s.; a second
magistrate, who receives ;f257 3s., and two others ,[180
each.


There are six Lords-Lieutenant at .i'85 15s. each.
Tite Supremo Council of Justlce.


The Supreme Couneil of Justice consists of a President
and four members.


TIte Courtfor Piratical Offences.
The judges constituting this court appear to receivc


no emoluments as such,


TIte Court of Speclal Commission,
This court was instituted in October, 1829. There


are seven commissioners, who receive no emoluments as
such.


The Judge of the Commercial Court receives no salary,
nor the President and Judges of the Court of Appeal j
nor of the Civil Court of the First, Second or Third Hall.


There is a magistrate of the markets, who receives a
salary of J:205 15s.-House of Commons Paper,




( 723 )


THE 18LE üF MAN.
-


'fHE Isle of Man lies midway between England, Scot-
Íand and Ireland. According to Geraldus Cambrensis
a dispute once existed as to which of the three countries
it could most properly be said to belong, and that this
dispute was settIed against the claim of Ireland, by the
fact that venomous creatures would live within its circuito
The soil is not fertile, except in the southern part of the
island. The climate, though more equable than that of
England 01' Ireland, is not favourable to vegetation, on
account of the prevalence of easterly winds, The herring
fishery is carried on to a considerable extent.


IIISTORY AND CONSTITUTION.


This island was held by the Kings of Northumberland
till it was conquered by the Norwegians. In 1226 it
was purchased from them by Alexander the Third of
Scotland. It was afterwards held by Lord Scrope, who
forfeited it to Henry IV., and by him it was granted in
the first year of his reign to Henry Earl of Northumber-
landó and on his being attainted of treason in the 5th
Hen. IV. it was again granted to John Lord of Stanley
and Man, In 1651 it was, upon the attainder of James
Stanley, Earl of Derby, conferred by the parliament upon
Lord Fairfax, On the Restoration it reverted to its an-
cient lords, and on the death of Charles Earl of Derby in
1735, it became vested in James Duke of Athol, as heir-
general of Earl James. In 1764 it was sold by Charles
Duke of Athel to the British government, with all its
rights of sovereignty, for 1'70,000; and in 1792, on the
ground that it had been purchased much below its value,
an additional compensation of 1'3000 a-year was granted
to the Dukes of Athol for ever,


Tbe island is ruled by a Governor, a Council for publie
affairs, and twenty-four persons, forming the House 01
Keys, so called, as it is said, from their unlocking the
laws. Tbese persons were originalIy representatives
chosen by the people, but are now a self-elected and per-
manent body. Together with the two Deemsters (the


3AZ




ISLE OF MAN.


judges of the northern and southern districts of the
island, who decided causes as they deemed(l) most con-
scientiously, by what were termed tbeir Breast Laws),
they formed the Tinwald Court, so named from the Ice-
landic Ting, an assembly, and wald a fence.· This court
meets annually in the open air on the Feast of Sto John
the Baptist, and is a court of general oyer and terminer,
In this general meeting aH new laws, the acts of Tinwald,
are promulgated.


The Deemsters are judges both in civil and criminal
cases, and their oath on entering office was to do justiee
between man and man, "as equally as the herring bone
lies between the two sides," in order that their daily food
might remind them of their duty.


The fleet engaged in the herring fishery is subjeet to
a Water-bailiff when on shore, and to a Vice-Admiral
when at sea. The island is the seat of a bishopric, which
however does not confer a right to a seat in the English
Parliament.


The civil division of the island is into six sheadings,
each having an rlnnuus 01' coroner, whose duties resemble
those of a sheriff and as many Moats and Captain« as it
contains parishes. The Moats superintend the revenue,
the Captains the militia.


LAWS.


Lord Coke says (4 Inst, :283), "that this isIand hath
been an ancient kingdom," but remarks that it was never
granted 01' conveyed by that name. Lord Hale says,
"touching the Isle of Man, this was sometimes pareel
of the kingdom of Norway, and governed by particular
laws and customs of their own, though many of them
hold proportion 01' bear sorne analogy to the laws of Eng-
land, and probably were at first and originaHy, seeing the
kingdom of Norway as well as the Isle of Man have
anciently be en in subjeetion to [qu, united with] the crown
of England. Vide Legis WilIi Primi in Lambard's Saxon
Laws."-Hale's Hist. Como Law, 183.


The Isle of Man is no part of the realm of EngIand;
and it is out of the power of the Chanccry of EngIand,
and not to be bound by the Parliament of England but
by special name.-4 Inst, :201-:284.


(1) Lord Cake says, 41"st. that the word Deemsters is derived from the
Saxon word Dema, which itself means a judge.




7Q5 )


sournrnx AUSTRALIA.


-


AFTER the preceding matter had been placed in the printer's
hands the Southern Australian Bill, referred to at page 672, was
passcd into a law, It has been thought advisable to append the
statute which has thus been obtained to crea te a new colony.


4 & 5 WILL. IV. CHAPo 95.


An Aet to empower His 11.fajesty to erect Soutñ Australia into a
British Province or Provinees, and to prorideJor lile Coloniza-
tum and Government thereof, [15th Augast, 1834.J


WHEREAS that part of Australia whieh lies between the meridians of the
one hundred and thirty-second and one hundred and forty-first degrees of
east longitude, and between the Southern Ocean and twenty-six degrees
of south latitude, together with tbe islands adjacent thereto, consista of
waste and unoccupied lands which are supposed to be fit for the purposes
of colonization: And whereas divers of His Majesty's subjeets possessing
amongst them considerable property are desirous to embark for the said
part of Australia: And whereas it is bighly expedient that His Majesty's
said subjects should be enabled to carry their said laudable purpose into
effect: And whereas the said persons are desirous that in the said in-
tended colony an uniform system in the mode of disposing of waste lands
should be permanently established: Be it therefore enaeted by the King's
most ExceHent Majesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present Parliament as-
semblcd, and by the authority of the same, that it shall and may be lawful
for His Majesty, with the advice of his Privy Council, to erect within
that part of Australia which Iies between the meridians of the one hun-
dred and thirty-second and one hundred and forty-first degrees of east
longitude, and between the Southern Ocean and tbe twenty-six degrees
of south latitudc, together with aII and every tho islands adjacent thereto,
and the bays and gulfs thereof, with the advice of his Privy Council, to
ostablish one or more provinces and to fix the respective boundaries ofsuch
provinces; and that all and every person who shaIl at any time hereafter
inhabit or reside wíthin His Majesty's said province or provinces shaIl be
free, and shall not be subject to or bound by any laws, orders, statutes, or
constitutions whieh have been heretofore made, or which hereafter shall
be made, ordered, or enacted by, for, or as the laws, orders, statutes, or
constítutions of any other part of Australia, but shall be subjeet to and




7526 SOUTHERN AUSTRALIA.
bound to obey such laws, orders, statutes, and constitutiona as shaIl from
time to time, in the manner hereinafier directed, be made, ordered, and
enaeted for the government of His Majesty's province or provinces of
South Australia.


2. And be it further enacted, that it shall and may be lawful for His
Majesty, his heirs and successors, by any order or orders to be by him 01'
them made with the advice of his 01' their Privy Council, to make, or-
dain, and, subject to such conditions and restrietions as to him and them
shall seem meet, to authorize and empower any one 01' more per-
sons resident and being within any one of the said provinces, to make,
ordain, and establish all such laws, institutions, or ordinances, and
to constitute such courts, and appoint such officers, and also such chap-
lains and c1crgymen of tho Established Church of England and Seotland,
and to impose and levy such rates, duties, and taxes, as may be necessary
for the peace, order, and good government of His Majesty's subjectsand
others within the said province or provinces; provided that al! such
orders, and alllaws and ordinances so to be made as aforesaid, shall be
laid before the King in Council as soon as conveniently may be after the
making and enacting thereof respectively, and that the same shallnot in
anywise be contrary or repugnant to any of the provisions ofthis acto


3. And be it further enacted, that it shall be lawful for His Majesty,
his heirs, and successors, by warrant under the sign manual, to be coun-
tersigned by His Majesty's Principal Secretary of State for the Colonies,
to appoint three 01' more lit persons to be commissioners to carry eertain
parts of this act, and the powers and authoritíes hereinafter contained,
into execution, and also from time to time at pleasure to remove any of
the commissioners for the time being, and ullan every 01' any vacaney in
the said number of eommissioners, either by removal or by death or
otherwise, to appoint some other lit persons to the said office j and until
sueh appointmcnt, it shall be lawful for the survivingor eontinuing com-
míssioners 01' commissioner to aet as if no such vacancy had occurred.


4. And be it further enacted, that the said commissioners shall be
styled "The Colonization Commissioners for South Australia j" and the
saíd commissioners 01' any two of them may sit from time to time, as they
deem expedient, as a Board of Commissioners for carrying certain parts
of this aet into exeeution.


5. And be it further enacted, that the said commissioners shall cause
to be made a seal of the said board, and shall cause to be scaled 01'
stamped therewith all rules, orders, and regulations made by the said com-
missioners in pursuance of this act; and all such rules, orders, and regu-
lations, 01' copies thereof, purporting to be sealed or stamped with the seal
of the said board, shall be received as evidence of the same respectively
without auy further proof thereof j and no such rule, order, or regulation,
01' copy thereof, shall be valid, or have any force or effcct, unless the same
shaIl be so sealed 01' stamped as aforesaid.


6. And be it further enacted, that the said commissioners shall and
they are hereby empowered to declare all the lands ofthe said province 01'
provinces (excepting only portions whieh may be reserved for roads and
footpaths) to be publie lands, open to purchase by British subjeets, and to
make such orders and regulations for the surveying and sale of such pub-




SOUTlIERN AUSTRALIA. 727
líe lands at such prioa as the said eommissioners may from time to time
deem expedient, and for the lctting of the eommon of pasturage of unsold
portions thereof as to the said commissioners may seem meet, for any
period not exceeding three years; and from time to time to alter and
revoke sueh orders and regulations, and to employ the monies from time
to time received as the purchase-money of such lands, 01' as rent of the
common ofpasturage of unsold portions thereof, in condueting the emigra-
tion of pOOl' persons from Great Britain 01' Ireland to the said provinee 01'
provinces : provided always, that no part of the said publie lands shall be
sold except in publie for ready money, and either byauction 01' otherwisc
as may seem best to the said commissioners, but in no case and at no
time for a lower price than the sum of twclvc shillings sterling per
English acre: provided also, that the sum per acre which the said corn-
missioners may declare during any period to be the upset 01' selling price
at which public lands shall be sold shall be an uniform priee; (that is to
say,) the same price per acre whatever the quantity 01' situation of the
land put up for sale: provided also, that the whole of the funds from time
to time received as the purchase- money of the said lands, 01' as the rent
of the common of pasturage of unsold portions thereof, shall constitute an
" Emigration Fund," and shall, without any deduction whatsoever, except
in the case hereinafter provided for, be employed in conveying pOOl'
emigrants from Great Britain 01' Ireland to the said province 01' pro-
vinces: provided also, that the pOOl' persons WIIO shall by means of the
said "Emigration Fund " be conveyed to the said province 01' provinees,
shall, as far as possible, be adult persons of the two sexes in equal pro-
portions, and not exceeding the age of thirty years.


7. And be it furtber enacted, that no pOOl' person having a husband 01'
wife (as the case may be), or a child or children, shall, by means of the
said " Emigration Fund," obtain a passage to the said province or pro-
vinces, unless the husband 01' wife (as the case may be), or the child
01' children of such poor person, shall also be conveyed to the said pro-
vinee 01' provinces.


8. And be it further enaeted, that it shall be Iawful for bis Majesty, his
heirs and successors, by warrant under the sign manual, to be counter-
signed by His Majesty's Principal Secretary of State for the Colonies, to
appoint a eommissioner of publie lands to be resident in the said colon)',
and to aet under the orders of tbe said Board of Commissioners as herein-
after dirccted.


9. And be it further enaeted, that the said eommissioners shall and
they are hereby empowered to appoint sueh person 01' persons as they
may think lit Treasurer, Assistant-Surveyors, and other officers, for car-
rying this aet into exeeution respecting the disposal of the said public
lands and tbe purchase-money thereof, and to remove such Treasurer 01'
Assistant-Surveyors or other officers at their discretion, and on every or
any vaeancy in the said offiee of Treasurer, Assistant-Surveyor, 01' other
officer, by removal 01' by death 01' otherwise, to appoint, if tbey see lit,
sorne other person to the said office.


10. And be it further enacted, that it sha11 and may be lawful for the
said commissioners to delegate to the said Colonial Commissioners, As··
sistant-Surveyor, or otber officer, 01' to any of them, such of the powers
and authorities with respect to the disposal of the public lands of the




728 SOUTHERN AUSTRALIA.
said province or provinces as the said commissioners shall think fit j and
the powel's and authorities so delegated, and the delegation thereof, shali
be notified in such manner, and such powers and authorities shall be
exereised at such places, for such periods, and under such cireumstanees,
ano subject to such regulations, as the said eommissioners shal! direet j
and the said eommissioners may at any time revoke, recall, alter, or
vary al! or any of the powers and authorities which shal! be so delegated
as aforesaid,


11. And be ít further enaeted, that all monies under the controul of
the said Board of Commissioners shali be reccived and paid by the Trea-
su.rers wlio may be appointed by the said board, and who shali give
security for the faithful díschargc of their duties to such amount and in
such manner as to the said commissioners may seem fit.


12. And be it further enacted, that al! aecounts of the said Treasnrer
shali be submitted to the Lords of His Majesty's Treasury, and be audited
in the same manner as other public accounts.


13. And be it further enacted, that the said commissioners may and
theyare hereby empowered from time to time to appoint a seeretary,
treasurer, and ali sueh clerks, messengers, and officersas they shali think
fit, and from time to time, at the diseretion of the said commissioners, to
remove such secretary, trcasurer, clerks, messengers, and officers, or any
of them, and lo appoint others in their stead.


14. And be it further enaeted, that every commissioner and colonial
commissioner to be appointed from time to time shali, before he shali
enter upon the execution of his office, take the foliowing oath before one
of the Judges of his Majesty's Court of Common Pleas, or one ofthe
Barons of the Court of Exchequer, or (in the case of such colonial com-
missioners) before the judge of one of His Majesty's Courts in the said
provinee or provinees; (that is to say,)


, 1, A. B. do swear, that 1 shal! faithfuliy, impartially, and honestly,
, according to the best of my skill and judgment, execute and fulfil all the
, powers and duties of a commissioner [or colonial commissioner, as the
, case may be,J under an act passed in the fifth year of the reign ofKing
, William the Fourth, intituled [here set forth the titIe ofthis actJ.'


15. Provided always and be it fnrther enacted, that the salaries to be
paid to al! such persons as may be appointed to any office under this act,
shal! be fixed by the Lords of His Majesty's Treasury, and by them
shall be revised from time to time as they may deem expediento


16. And be it further enaeted, that the said commissioners shall, at
least once in every year, and at such other times and in sucli form as
His Majesty's Principal Secretary of State for the Colonies shall direct,
submit to the said Seeretary of State a full and particular report of thcír
proeeedings; and every such report shall be laid before both Houses of
Parliament within six wecks alter the reeeipt of the same by the said
Secretary of State, if Parliament be then sitting, 01' if Parliamcnt be not
sltting, then within six weeks after the next meeting thereof


17. And bc it further enacted, that it shall and may be lawful for tho
said commissioners, previously and nntil the sale of pub1ic 1\111\110 in the




SOUTHERN AUSTRALIA. 729
said province shall have produeed a fund sufficient to defray the cost of
conveying to the said province 01' provinces, from time to time, such a •
number of pOOl' emigrants as may by the said commissioners be thought
desirable, from time to time to borrow and take up on bond 01' otherwise,
payable by instalments 01' otherwise, at interest not exceeding .f10 per
cent. per annum, any sum 01' sums of money not exceeding &50,000, for
the sole purpose of defraying the costs of the passage of pOOl' emigrants
from Great Britain 01' Ireland to the said province 01' provinces, by
grallting and issning, to any person 01' persons willing to advance such
monies, bonds 01' obligatory writings nnder -the hands and seals of the
said commissioners 01' of any two of them, whieh bonds 01' other obliga-
tory writings shal! be termed "South Australia Puulic Lands Seeuri-
ties ;" and all such sum 01' sums of money, not exeeeding in the whole
.f50,000, so borrowed 01' taken up by means of the bonds 01' writings ob-
ligatory aforesaid, for the sole purpose aforesaid, shall be borrowed on the
credit of and be deemed a eharge upon the whole of the fund to be re-
ceived as the purchase-money of public lands, 01' as the rent of the com-
mon of pasturage of unsold portions thereof; and it shal! and may be
lawful for the said commissioners from time to time to appropriate aU 01'
any part of the monies which may be obtained by the sale of publie
lands in the said province 01' provinces to the payment of interest on any
such sum 01' sums borrowed and taken up as aforesaid, 01' to the repay-
ment of sueh principal sum 01' sums.


18. And be it further enacted, that for defraying the necessary costs,
charges and expenses of fonnding the said intended colony, and of pro-
viding for the government thereof, and for the expenses of the said com-
missioners (excepting always the purpose whereunto the said emigration
fund is made solely applieable by tbis act,) and for defraying al! costs,
charges and expenses incurred in carrying this act into execution, and
applying for and obtaining this act, it shall and may be lawful for the
said commissioners from time to time to borrow and take up on bond 01'
otherwise, payable by instalments 01' otherwise, at interest not exceeding
&10 per cent, per annum, any sum 01' snms of money required for the
purposes last aforesaid, not exceeding in the whole the snm of &200,000,
by granting 01' issuing to any person 01' persons willing to advance such
monies, bonds 01' obligatory writings under the hands and seals ofthe said
commissioners 01' any two of them, which bonds 01' other obligatory
writings shal! be termed "Sonth Australia Colonial Revenue Securitles;"
and al! snch sum 01' sums of money by the said commissioners so borrowed
and taken up as last aforesaíd, shall be and is and are hereby declared to
be a charge upon the ordinary revenue 01' produce of al! rates, duties
and taxes to be levied and collected as hereinbefore directed within the
said province 01' provinces, and shal! be deemed and taken to be a public
debt owing by the said province to the holders of the bond 01' bonds 01'
other writings obligatory by the said commissioners granted for the pur-
poses last aforesaid.


19. And be it fnrther enacted, that it shalI and may be lawful for the
said commissioners at any time to borrow 01' take up any sum 01' sums of
money for any of the pnrposes of this act at a lower rate of interest
than any security 01' securities previonsly given by them under and by
virtue of this act which may then be in force shall bear, and therewith to
pay off and discharge any existíug security 01' securities bearing a higher
rate of interest as aforesaid.




730 SOUTHERN AUSTRALIA.
20. And be it further enacted, that in case it should so happen that the


said commissioners shall be unable to raise by the issue of the said colo-
nial revenue securities the whole of the said sum of ;(200,000, or that
the ordinary revenue of the said province or provinces shall be insuffi-
cient to discharge the obligations of all or any of the said secnrities,
then and in that case, but not otherwise, the public lands of the said pro-
vince or provinces then remaining unsold, and the monies to be obtained
by the sale thereof, sha1l be deemed a collateral security for payment of
the principal and interest of the said colonial debt: provided always,
that no .monies obtained by the sale of public lands in the said province
or provinces sha1l be employed in defraying the principal or interest of
the said colonial debt so long as any obligation crcated by thc said South
Australian Public Lands Securities sha1l remain undischarged: provided
also, that in case, after the discharge of all obligations created by the said
South Australian Public Laud Securities, any part of the monies obtained
by the sale of public lands in the said province or provinces shall be em-
ployed to discharge any of the obligations created by the said colonial
revenuc securities, then and in that case the amount of such deduction
from the said emigration fund sha1lbe deemed a colonial debt owing by
the said province or provinces to the Colonization Commissioncrs for
South Australia, and be charged upon the ordinary revenue of the said
province or provinces.


21. And be it further enacted, that the commissioners nominatcd and
appointed by Bis Majesty as aforesaid, may sue and be sued in the name
or names of any one of such commissioners, or of their secretary, clerk
or c1erks for the time being; and that no action or suit to be brought or
commenced by or against any of the said commissiouers in the name or
names of anysuch one of such commissioners, or their secretary or clerk,
shall abate or be discontinued by the death or removal of such commis-
sioner, secretary or clerk, or any of them, or by the aet of sueh commis-
sioner, secretary or clerk, or any of them; without the consent of the said
commissioners, but that any one of the said commissionera, or the secretary
or clerk for the time being to tho said commissioners, shall always be
deemed to be the plaintiff or defendant (as the case may be) in every
such action or suit: provided always, that nothing herein contained shall
be deemed, construed or taken to extend to make the commissioners who
shall sign, execute, or give any of the bonds or obligatory writings so
hereby authorized or directed to be given personally, or their respective
estates, lands, or tenemen ts, goods and chattels, or such seeretary or
clerk, or their or either of their lands and tenements, goods and ehattels,
liable to the payment of any of the monies so borrowed and secured by
reason of their giving any such bonds or seeurities .as aforesaid, or of their
being plaintiff or defendant in any such action as aforesaid; but that the
costs, charges and expenses of every such commissioner, secretary or
clerk, by reason of having been made plaintiff or defendant, or for any
contract, act, matter, or thing whatsoever, made or entered into in the
bond fide execution of this act, from time to time to be defrayed by the
said commissioners out of the money so borrowed and taken up as afore-
saíd.


22. And be it further enacted, that no person or persons convicted in
any court of justice in Great Britain or Ireland or elsewhere, shall at any
time or under any circumstances be transported as a convict to any place
within the limits hereinbefore described.




SOUTHERN AUSTRALIA. 731
23. And be it further enacted, that it shall and may be lawful for Hís


Majesty, by and with the advice of his Privy Couneil, to frame, eonstitute,
and establish a constitution or constitutions of local government for any of
the said provinces possessing a population of 50,000 souls, in such manner
and withsuch provisoes, limitationsandrcstrictions, as shall to His Majesty,
byand with tho advice of his Privy Council, be deemed mect and desirable:
provided always, that the mode hereinbefore directed of disposing of the
public lands of the said province or provinces by sale only, and of the
fund obtained by the sale tbereof, shall not be liable to be in anywise
altcred or changed otherwise than by the authority of His Majesty and
the consent of par!iament: provided also, that in the said constitution of
local government for the said province or provinces, provision shall be
made for the satisfaction of the obligations of any of the said colonial
revenue securities which may be unsatisfied at the time of framing such
constitution of the said province or provinces.


24. And be it further enacted, that for the purpose of providing a
guarantce or security that no part of the expense of founding and go-
verning the said intended colony shall fal! on the mother country, the
said commissioners shall and are hereby empowered and required, out of
the monies borrowed and taken up as aforesaid on the security of the
said South Australian Colonial Revenue Securities, to invest the sum of
;(20,000 in the purchase of Exchequer bills or other government secu-
rities in England, in tbe names of trustees to be appointed by Ris Ma-
jesty; and the said trustees shall bold the said Exchequer bilIs, or otber
government securities, so long as may seem lit to His Majesty's Principal
Secretary of State for the Colonies; or shall, in case it shall seem lit to
lIis Majesty's Principal Secretary of State for the Colonies, dispose of the
same for any of the purposes to which the monies raised by the issue of
the said South Australian Colonial Revenue Securities are hereby made
applicable: provided al ways, tbat if the said Secretary of State sbould
dispose of any part of the said ~20,OOO, a sum or sums equal to the sum
or sums so disposed of shall be invested in the names of the said trustees
by the said commissioners, so that the said guarantee or security fund of
;(20,000 shall not at any time be reduced below tbat amount: províded
always, that the interest and dividends arcruing from time to time upon
the said Exchequer bills or other government securities, shal! be paid to
the said commissioners, and by them be devotcd to the purposes to which,
as hereinbefore directed, the monies to be raised by the issue of the
aforesaid South Australian Colonial Revenuc Bonds are made applicable.


25. And be it further enacted, that if after the expiration of ten
years from tbe passing of this act the population of the said province or
provinces shall be less than 20,000 natural born subjects, then and in
that case al! the public lands of the said province or provinces which shall
then be unsold shall be liable to be disposed of by His Majesty, his heirs
and successors, in such manncr as to him or them shall seem meet: pro-
vided always, that in case any of the obligations created by the saíd South
Australian Public Lands Securities should then be unsatisfied, the amount
of such obligations shaIl be deemed a charge upon tbe said unsold public
lands, and shall be paid to tbe holders of such securities out of any mo-
nies that may be obtained by the sale of the said lands,


26. And be it furtber enacted, that until the said commissioners sball,
by the granting and issuing of bonds and writings obligatoryas aforeaaid,




732 SOUTHERN AUSTRALIA.
that is 10 say, "South Australian Colonial Revenue Securities," have
raised the sum of ~20,OOO, and have invested the same in the purchase
of Exchequer bills 01' other government securities, as hereinbefore directed,
and until the persons intending to settle in the said province 01' provinces
and others shall have invested, (either by payment to the said commís-
sioners, 01' in the names of trustees to be appointed by them,) for the
purchase of public lands in the said province 01' provinces, the sum of
~35,OOO, none oí the powel's and authorities hereby given 10 His Ma-
jesty, 01' to the said commissioners, 01' to any person 01' persons, except as
respects the exercise by the said commissioners of such powers as are
required for raising money by means of and on the security of the bonds
01' sccurities last aforesaid, and for receiving and investing the aforesaid
sum of ~35,OOO íor the purchase of public lands, shall be of any efi'ect,
01' have any operation whatsoever,




733


COLLECTIONS OY COLONIAL LAWS.


The following Paper has been thought worthy of in-
sertion, as showing at one view the collection of Colonial
Laws known in this country at the time of its date.
Return of Copies of all Puhlic Acts and Proceedings of the Le-


gislative Assemblies printed by the several Colonies, as far
as the same can at present be complied with by the Colonial
Department,


26th March, 1828. F. L. GOWER.


Montserrat .•••..•••......••..•....••....••


Ncvis •.••...•..••.................•...••.


180"
Hl08
1813


1790
1804
1817


1762


1740


1791


1739


1805
1314
1808
1815


1824
1827


1804
1814


1304


33 Geo. 2
32 Geo. 3
39 Geo. 3
4·! Gco. 3
50 Geo, 3
57 Geo. 3
4 Geo, 4


22 Caro 2 lo
1 Gco.3


33 Gco. 3
40 Geo. 3
45 Geo.3
51 Geo.3
58 Geo.3


,'; Geo.4
6 Geo, 4
7 Geo.4


1729 lo
lb05
tUO\l


1690
1791
180!


1613


1668


1711


1664


1763
1805


1767
1809


1792
1825


1792
180,';


17tJ8


1.
U.


llI.


1.
lI.


m.


Antigua .....•................


Barbados .


Lower Cenada .............•................


SI. Christopher .•••...................•....


Upper Canada ..


Bahamas ....••.•..............


N ova Scotia .............•................


St, Vinccnt. ...•.................•.. , Vol. l.
n.


Grenada .•....••........•........ , .


Jamalea • • . . • • . . . • . . . . . . • • . . . . Vol. I.
H.
m.
IV.
V.
VI.


VII.
1st PartofVol. VIII.
2d •.•..••..•....•
3d •..•••......•••




781~ rUELIC ACTS, &C.


1786 to present time.
in two vols, continued.


Malta, Proclamations and Govemor's Notices ...•


Cey Ion, Proclamationa and Regulations ••••••••


Kandyan Enactments ••••••••.••.•••••••.••.•
New Brunswick Acts frum••••.••••.•••••••.••


t813
1821
1823
1824


1799
1B~3
1824
1825
1826
1815


to 11120
1822
1824
1825


1821


1822




INDEX.


A.
ADMINISTRATION, LETTERS 0:1<',105.


ADl\11RALTY, COURT OF, 59-what matters to be sued for in, 76-
fees of officersin, how to be regulated, 79-appeals from, id. and n.


AFFIRMATlON,8I.


ALCALDES-in ordinary, 318-de Barrio, 319.


ALDERNEY-deseription of and govcrument, 706.


Al\'G VILLA. See STo CIIRISTOPIIER.


ANNUUS, 724.


ANTIGUA, the chief seat of government for the islands of Antigua, Bar-
buda, Dominica, Montserrat, Nevis, and St, Christopher, 123-
description of, 124-history and constitution, id.-courls in, 127-
Court of Chancery, 128-Conrtof Appeal and Error, id.-Court of
Common Pleas, id.-Conrts of Complaint, Ordinary, Admiralty, and
Ring's Bench, 129-justices of the peaee in, 130-eoroner, 131-col-
leetion of laws, id.-geuerallaws of the colony, 132.


APPEALS -historienl origin of, 106-rules observed at the Privy Coun-
eil as to entering appeals, lll-petition of, 114-course of prac·
tice in lodging the petition of appeal, 115, el' seg. (For the Colonial
Courts of Allpeul and the "egulations there eoforced. respezting thcm, see
tlie diffel'enl Colonies.)


ARCHDEACON. (See the tule " Courts" in the rlifferent Colonies.)
ASSEMBLY, HOUSE OF-resembles the Parliament of Great Britain,


38-how elected, 38, 39-power and privileges, 39, 40-aets of, how
confirrned generally, 41; and when they contain a suspending clause,
44, 45-acls of, where preserved, 45-aels of, must not (except in
Lower Canada) he repugnant to the laws of England, 26, 40, 52, 53-
what eolonies it exists in, 68. (See ulso the accounts of th» dijf'erent
Colonies.)


ASSIGNMENT-in bankruptcy, effect of, 102. (As lo the assignment of
debts,judgmenls, 8jc.see the laws of tlie dij"erent Colonies.)


ATTORl\"IES-howadmilled in the different colonies, 55. (See the ae-
coun/s '?! the Courts 1.' lhose colonics.)




73G


..


INDEX.


AUSTRALIA, SOUTHERN-note on, 672-statute creating the co-
lony, 725.


AUSTRALIA, WESTERN, to be a colony, 19, n.s--Australian Colonies,
account of, 599-description of', 664-history, id.-government, 666
-civil judicature, 667- mesne process, id.-Court of Quarter Sessions,
668-Vice-Admiralty Court, 669-laws, id.-coloni'!l acts, id.-
juries, id.~erown debts, id.-fraudulent eonveyanees, id.-transfer of
real property, .671-Order in Council in the nature of a Charter
of Justiee, id.


B.


BAHAMAS-deseription of, 366-history and constitution, 367-Council
and House of Assembly, id.-aets of the legislaturc, 368-Courts in
general, and their law and practiee, 371-counsel and attornies, 373
-the General Court, id.-the criminal jurisdietion of that court, 374
-its civil jurisdiction, 375-revenue jurisdiction of the Superior Court,
377-Inferior Court, id.-Courts of Appeal and Error, 378-Court of
Chancery and its practice, id.-Court of Ordinary, 380-Court of
Vice-Admiralty,id.-Court of Admiralty Sessions, 381-justices of
the peace, id.-escheats, 382-insolventa, id.-attorney and solicitor-
general, id.-colonial secrctary, 383-provost marshal, id,-coroners,
384-police magistrates, id.-appeals, id.-foreign judgments and
contracts, id.-absentees, 385-marriages, id.- wills, intestacy, &c.,
386-passes to quit the colony, id.


BANKRUPTCY-certificate in, 96-effect of assignment in, 102, (As
to the laun relaling to bankrupts in different colonies, see tllosecolonies.)


BA RBADOS-unchristian custom in the Slave Court at, 6, n.-was a pro-
prietary government, 20, n.-the chief seat of government for Barbados,
Grenada, St, Vincent's, and Tobago, 123-description of, 175-history
and constitution, id.-origin ofthe 4i per cent, duty, 178-laws, 181-
arrests and underwritings, id.-Courts, 183-Court of Chancery, id.-
Court of Exchequer, 186-Court of Common Pleas, 188-bench ac-
tions, 191-Court of Ordinary, id.-Co"rt of Admiralty, 192-Court of
Appeal and Error, id.-Escheat Court, 193. Criminal Courts-e-Court
of Grand Sessions, id.-Court of Quarter Sessions, 194-barristers
and attornies, id,-debtors, absent or absconding, 195-aliens, 196-
collection of laws, id.


BARBUDA, a dependency of Antigua, 123-description of, 133.


BARRISTERS, 55, (AIld see each colonufor an aeCollnt qf tlie admissioll
'!f barristers practising in the courts there.)


BERBICE. See BRITISH GurANA.


BERMUDAS or SOMERS' ISLANDS-description of', 388-hislory
and constitution, id.-courts, 389-Court of Chancery, id.-Court
of General Assize, 390-Court of Error, id.-particular laws, 391-
intestates' estates, 391-statute of limitations, 392 and 394-act for
passing real estates of married women, id.-furtber acl thereon, 393-
act to prevenl frauds and abuses in mortgages, 394-act to make real
esta tes subject to debts, 395-act for barring entails, id.- act for the
relief of insolvent debtors, 396.


BlSHOP IN TIIE COLONIES-his powers, how limited, 32, 33, and n,


BRETON. See CAPE BRETON.




INDEX. 737
BRITISH GUIANA, 18 and n.-joined, as to the adrninistration of jus-


tice, with Sto Lucia and Trinidad, id.-what law in force in, 23-
Courr of Policy, the local legislature of, 26, 27, and n.-forrned out of
the union of the colonies of Demorara, Essequibo, and Berbice, 123
and 236--description of.. 236-history and constitution.239-Court
ofPolicy and College of Kiezers, 240-Courts, 244-Laws, 246-prac.
tice of the courts, 248 -officers of the courts, 252. e! seg.-Court of
Admiralty, 257-0rphan Charnber, 258-wills, 259-mortgages, 260
-bankruptcy, id.-Cornmission constitnting the united colony of, 262
Orders in Council for the administration of justice in, 267, 274-
inferior courts of civil justice in, 284-rules of practice of the Suprerne
Court of, 285-rules of practice in the inferior courts, 288- Order
in Council respecting the qualification of assessors, id.-ordinance re-
lating lo the assessors, 294-amended ordinancs, 297-laws in, 298.


C.


CABILDO, 320.


CANADA, LOW¡'~R-allowedto make eertain laws not eonformable to
the laws of England, 26, n., 52.


CANADAS, 397-history and constitution, id.-CouRTS IN LOWER CA'
NADA, 401-Court of King's Bench, 402-of Vice-Admiralty, id.-
Coroners, id.-Quarler Sessions, id.-salaries of publie officers, 403-
COURTS IN l'PPER CANA DA, id.-Court of Kmg's Bench, 404-
Courls of Assize, 405-Court of Appea1, id.-Dislrict Courts, 406-
Conrt of Probate, id.-Surrogate COUltS, 407-law offieers of the
crown, id.-justices of the peaee, id.~barristers and attornies, 408-
eeclesiastical establishments, id.-Iaws, id.


CAPE BRETON, 457-historyand constitution, 458-particular laws,
id.-wills, id.-debts, 459-frauds and perjuries, id.-statute of limi-
tations, id,-rate of interest, 460-absent proprietors, id.-estates
tail, 461.


CAPE OF GOOD HOPE-what legislation subjeet to, 23-what law
prevails in, id.-how loeallaws made and promulgated, 25··-descrip-
tion of, 466-histery and constitution, id.-Conrts, 467-tenures of
land in, 467, n.-Ianddroost, 468-heernraaden, id.-Cape Town, 471
-Courts, id.-insolvent law, 472-sheriff, 473-Ceurt of Vice-Admí-
ralty, 474-Policc Court, id.-Ceurt for the recovery of small debts,
Cape Distriet, id.-Matrimonial Conrt, 475-Charter of Justiee, id.-
ordinance for the jnry, 481, n.-Distriet COUltS, 487, n.


CASTELLANO, 718.


CEREMONIES, UNCHRISTIAN, 6, n.


CEYJ.ON-how acquired and what legislation subject to, 23-what Iaw
in force in, id.-how local erdinances made and promulgated, 25-
description of, 537-history and constitution, id .-peeuliar offices
among the Ceylonese, 541-courts, 542-Charter of'.Justice, 544-
supplementary cornmission,567-royal instruetions, 569-introduction
of jury trial, 580. .


CHANCERY, COURT OF, 56-can enforee the sale of lands situated
in the colonies, 83 et seq.and n.-Cour!s of, in the colonies, (See the
aceoun!s r!fthe Courts nf eách Colony.)


3 B




738 INDEX.
CIIANCELLOR IN THI': COLONIES. See GOVERNOR.


CHARTER GOVERNMENTS, 3, n., 17 and n., lB, 20, and n,


CHARTERS OF JUSTICE, 2,21,22, n., 24, 25-for Britisb Guilna,
267, 274--for the Cape of Good Hope, 475-for Ceylon, 544-for
Gibraltar, 680-for Maurítius, 594-for Newfoundland, 423-for
New South WaJes, 627-for Sierra Leone, 499-for SI. Lucia, 267,
274-for Trinidad, id. -for Van Diemen's Land, 653-for Weslern
Auslralia, 671.


CODES OF LAWS-promulgaled by France, Spain, and Holland, for
the governmenl of their respective colonies, 23, 24. See also LA.ws or
A COLONY.


COINS-laws relating lo foreign, 74.


COLONIES-whal, 1, n.-laws lo whieh they are subjeel, 3 and 7-by
whom adrninistered, 3-exlenl of prerogative, in, 3, 3, n.-aequired by
cooquesl, cession, or occupancy, 4, 4, o.-power of chaoging the laws
of, in whom vested, 6, 7-acquired by oecupaoey are ipso [acto go-
verned by the laws of England, 7-executive officers of, in whom the
righl of appointing, 9, lO--by whal words iocluded in acts of the Bri-
tish Parliamenl, 16-whal particular legal constitutions now prevail
in the eolonies,id.-enumeralion of, lB, 19-ac~uired by diseovery or
occupaoey, 21-subjeel to the legislation of parliamcnt, id.-aequired
by conquest, 22-subjeel lo the legislation of the crown, id.-general
mode of governmenl of the different, 25-musl nol make laws repug-
nant lo those oí England, id. n.-exceplion in ooe case with regard lo
Lower Canada, 26, n.-king's prerogalive in, 45-expenses of admi-
nistration, how provided for, 4B--eourls of justice in, 52-how maDY
have legislativa assemblies, 68-aels of parliament imposing regulations
00, id.-offiees in, not lo be void 00 the death of the king, 7B-ac-
counts of, how examined, id.-Vice-Admiralty Courls in, 79-poinls
of law connected with the, 81-trespasses lo real property in, cannot be
the subjeet of actions in England, 83-00te upon this doctrine, id. el
seq.-aetions for personal injuries in, may be tried here, 89-contraets
in, how expounded, 90-iolerest upon debts contracted in, how calcu-
lated, id.-judgments of eourls in, howenforced in Eoglaod, 92 el
seq. -slatule of Iimitations, how it applies lo, 95-eolonial certificates
in cases of bankrupley, 96-colonial transactions, evidenee of, required
by (he courts here, 97-laws of, how proved, 101-assignmeDl under
an English bankruptcy, how it affects property in, 102-residents
in, how to vote for assignees under an English eommission of bank-
ruptey,I04-grant of probate 01' administration here, how it affects


properly in, lO5-receut changes in the governments of, 123.


COMMISSIONS-lheir usual forrn, 16-nature of a governor's, 27-fo1'
the examination of witnesses in the colonies, 97, el seq.


CONSTlTUTlONS-whal now prevailing in the colonies, 16-ofthose
aequired by conquest bnt not subject lo the legislation of the crown,
27. (For the eonstiuuion of eacli particlllar coúmy, see the differenl
colonies.)


COUNCIL. (See also GovERNoR.)-appointed by tbe crown, 27,35-
members of it ma.y be suspended by the govcrnor, 29 and D., 35, 38-
sometimes sil with the governor as judges in Chancery, 32, 37-sil
with him ou writs of error from the Commou Law Courts, 37-form a
part of the colonial legislature, id.-members not required to have a




INDEX. 739


302


territorial qualification, 38. (Far an accm.mt of the COIlncils in the
colDl';es, seeeaeh c%uy.)


COURTS OY JUSTICE IN THE COLONIES, 52, et seq. (See also
the varions colonies j¡'r an aeconnt Irj" the com·ts specially established in-
eaeh '!f them.)-rules of practice in, 55-judgmenls in, considered as
foreign, 92.


COMMON LAW in force in the eolonies aequired by oeeupaney, 8 and n.


COMMUNE-council of, 588.


CONSIGLIO POPOLARE, 713.


CRIMINAL OFFENCES-eourt for the trial of, 61-statutes relating
to, 75, 77-points of law relating to the trial of, 81


CROWN. See KING.


D.


DEBTS due from persons in the colonies to persons in England, how re.
covered, 57-statutes relatingto, 75 and n, (2).


DEEMSTERS, 724.


DEMERARA-Court of Poliey, its local legislatura, 26 -how that privi-
lege obtained, id. See BRlTISH GUIANA.


DOMINICA-not subject to the 4t !;Jer cent. duties, 51 and n.-a de-
pendency of Antigua, 123-descnptioD of, 134-history and consti-
tation, id.-collection of laws, 138-generallaws of the colony, 139-
courts, id.-Court of Chancery, 140-Court of Common PIcas, id.-
Complaint Court, id.-Court of Ordinary, 141-Court of Vice-Ad-
miralty, id.-Court Merchant, id.-Court of Appeal and Error, id.-
Court of Grand Sessions, HZ.


DRAM!..TlC AUTHORS' BILL, 80.


E.
EQUITY, natural, when to be administered, 5~what it is, 6, n,
ESCHEAT. See the titles "COURTS" and "LAWS" in each co1ony.


ESSEQUIBO. See BRrTISn GUIANA.
E VIDENCE required as to colonial transaclions, 97-of foreign witnesses,


how obtained, 98.


EXECUTION. See the titles ••COURTS" and .. LAWS" in each colony.


F.


FEES. See the titles "COURTS" and "LAWS" in each colony.


FISCAL. See BRITISH GurANA,CAPE OF GOOD Hoss, and MALTA.
FOREIGN COIN-I:¡,ws relating to, 74.


FOREIGN LAWS, proofof, 101.




740 INDEX•


~:C-'~~-;;'~''T;'''', .
" ~<
. ,


.:~:~.,


. FOUR and a half per cent, duties, what islands subject to, 49, et seq.-origin
of, in Barbados and the Virgin Islands, id. and 178-Jamaica notsub-
ject to them, 50-how applied, 50, 51-Dominica, Grenada, St, Vin-
cent, and Tobago, not subject to them, 51, n, and 198, et seq.


G.
GAMBIA, 498.


GANANCIAS, 321.


GIBRALTAR not a COIODY, and why, 2, n.-Iaw in force in, 15, n.-de-
scription of, 673-history, id .-petition of the inhabitants for a con-
stitution, and report thereon, 674, el seq.-former constitution, 678
-commissioD for the trial of pirates, 679-laws, 680-government, id.
-Charter ofJustice, id.-Order in Council relating to bankruptcy, 690
-practice of the courts, 693-j udgments, id.-barristers, id.-prose-
cutions, 694-general rules of the English Courts adopted in Gibraltar,
id.-rules in bankruptcy, id.


GOLD COAST, settIement on, 499.


GOVERNOR, nature of his commission, 27-his titIe, rights and duties,
28 et seq. (See also the Introduction)-is chanceIlor, 31-is ordinary,
32-his salary, how provided for, 33, and n.-may act against the
advice of the council, 36.


GOZO, description of, 711-government of, 715.


GRENADA, a dependency of Barhados, I23-description of, 197-
history and constitution, 198-account of its successful resistance to
the 4! per cent, duties, 19B, el seq. (see also 51, n.)-ordinances,
205-coIlection of Iaws, id.-generallaw of the COlOIlY, 206-courts,
207-Court of Chancery, id.-the Supreme Court, 208-juries, 209-
executions, id.-Complaint Court, 210-Court of Ordinary, id.-
Court of Admiralty, id.-Conrt of Appeal and Error, 211-criminal
jurisdiction of the Supreme Court, id.-judges, 212-attomey-general
and barrísters, 213.


GUADALOUPE, why not a colony, 1, n,


GUIANA. See BRITlSH GUlANA.


GUERNSEY-not a colony, 3, n.-description of',705-history and consti-
tution, id.-laws, 706-Courts, Appeals,&c. íd.-recent alterations in
the laws, 707-bankruptcy, 70B-registration, 709-descent, id.-
criminal matters, id.-Iaw officers, id.-commercial regulations, 710.


H.


HEEMRAADEN,468.


HELIGOLAND-how acquired, and what legislation subject to, 23-is
a mere fortress, 24-deseription of, 695-present government, 696.


HONDURAS not a colony, 2, n.-for that reason not enumerated in the
list of colonies, 19, n.-description of, .326-history and constitution,
327~why not mentioned in modem treaties, id.-Courts in general
aud practice in, 329-Supreme Commission Court, 332-Grand COUl't,
333-Summary COlUt, 334-free coloured persons, id.-magistrates,




INDEX. 741
id.-c1erk of the courts and keeper of the records, id.-coroner, 336-
notary, id.-police officer,id.-arbitrations, id.-appeald, 337.


J.


JAMAICA, description of, 338-history and eonstitution, 339-its inha-
bitants rejeet the arbitrary scheme of government proposedby Charles Il ,
340-they refuse to pay the 4! per cent, duties, and agree to a revenue
act, 34I-mode of government of the parishes in, id.-House of As.
semhly, id.-Courts in general and the Iaws therein, 342-laws, id.-
collection of laws, 343-governor's salary, 342-his powers, 343-
particular laws of the colony, 344-foreign judgments, 34i)-bank-
ruptcy, id.-mal'riage and dower, 347-aliens, id.-·wills, 348---mort-
gages and registry, id.-statute of limitations, id.-arrest for debt, 349
-notice of proceedings, id.-counsel, id.-Supreme Court of Judica-
ture, 350-criminal jurisdiction of the court, 351-civil jurisdiction,
352-revenue jurisdiction, 354-Court of Error, 355-Court of Chan-
cery, id.-its powers and practice, 355, et seq.-Court oC Ordinary, 358
-Court of Vice-Admiralty and Admiralty Sessions, 359-custodes and
justices of the peace, 361-Court of Quarter Sessions,362-insolvents,
id.-alloruey-general, id.-colonial secretary, 363-provost marshal,
364-coroner, id.-appeals, id.


JERSEY-not a colony, 3, n:-description of, 697-history and constitu-
tion, id.-convention of the estates, 698-bailiff, id.-jurats, 699-
courts, id.-laws, 701-peculiar laws, 702-insolvency, id.-limita-
tions, 703-registration of deeds, 704-rate of interest, id.-choses in
action, id.


JUDGES. See the tilles "CouRn" and " HlSTORY AND CONSTlTUTlON"
in each colony.


JUDGMENTS, COLONIAL-how enforced in England, 92 et seq.


JUDICIAL COM~nTTEE,who to be members of it, 113.
JURATS, 697, 699,700,705,707.


JURY, trial by, 57-For sorne account of juries in the colonies, see the
tilles" COURTS" and .. LAWS" in each colony,


K.


KIEZERS, COLLEGE OF. See BRITlSH GUIANA.


KING may give such colonies the right to hold legislative assemblies, 7-
cannot afterwards legislate for them, id.-cannot legislate for colonies
acquired by occupancy, 7, 8-appoints the governor and other officers,
erects courts, summons assemblies, &e. 9, IO-Coreign acquisitions can-
not be made but forhis benefit,10, n.-has sometimesgranted proprietarv
or chárter govermnents, 16, 17-was authorizedby statute lo accept the
surrender of the charter granted to the Sierra Leone Company, 20,21
-then granted a charter of justice, 21-still exercises the right of
legislation over certain colonies, 22, 23, 24 and n.-ordinances of co-
lonies subject to bis confirmation or disallowance, 25-in all colonies
issues bis commission and instructions lo tbe governor, 27-does not
delegate his power of pardoning in cases of murder and treason, 31-
the extent of bis prerogative in the colonies, 38, n,' 45--prerogatives,
how exercised in the colonies, 45-limits of, 47-has the right lo
give laws to conqucred or ceded colonies, 46, 58, n,




742 INDEX.
KING'S BENCH, Court of, has jurisdiction over the conduet of gover-


nors, 35-COUTtS of King's Bench in tbe colonies, 56 See also the
different colonies.


L.


LANDDROOST. See CAPE OF GOOD HoPE, 468.


LA WS, FOREIGN AND COLONIAL-proof of, in this country, 101.


LAWS OF A COLON Y, 3-how affected by conquest or cession, 33, n-
-power of changing, in whom vested, 66 n.-common law in force in
colonies acquired by occupancy, 8-how much of the statute law co-
lonies acquired by occupancy possess, 7,8, 9 and n.-must not be
repugnant to the laws of England, 26,40, 52-how confirmed in this
country, 41-what English laws applicable to the colonies, 53, 54-
points of, connected with the colonies, 81, et seq,


LIEUTENANT.GOVERNOR, not usuallyappoinled now, 34-amount
of his salary, how settled, 34, n. See GOVERNOR.


LIMITATIONS, STATUTE OF, its application lo colonial transactions,
95. (For an acco"nt oftlie Statutes l' Limitatilms in force in different
colonies, see those colonies.)


M.


MALTA, not a colony, 3, n -fo be deemed in Europe, 19-subject
to the legislation of the crown, 23-by what laws governed, 24-
description of, 711-history, id.-account of its constitution, 712-
Consiglio Popolare, 713.-Courts and Laws, 7l6-coroner, 7l7-fiscal,
7l8-castellano, id.-Universita, id.-appeals, 719-salaries of public
officers, 721-inferior court, 722-lords-lieutenant, id.-Court for Pi-
ratical Offences, id.-CoUl't of Special Commission, id.


~lAN, ISLE OF, description of, 723-history and constitution, id.-
Courts, id.-deemsters, 724-annuus or coroner, id.-laws, id.


MAURITIUS, howacquired, and what legislation subjectto, 23-what
law in force in, id. and n.-description of, 583-history and constitu-
tion, id.-laws, 585-Courts, 586-codes of laws, 587-Colonial
Council, id.-Couocil of the Commune, 588-powers of the governor,
589-court for the trial of piracies, 590-curator of vacant possessions,
591-burials, id.-prosecutions, id.-divorce, id.-regi1!tration of
deeds, id.-arrests, 592-mortgages, id.-THE SEYCHELLES, 592-
woods and forests, 593-Charter of J ustice, 594.


MOATS, 724.


MONTSERRAT, a dependency of Antigua, 123-description of, 143-
history and constitution, id.-conrts, id. and 148-collection of laws,
144-Court of Chancery, 14B-Court of King's- Bench, id,-Court of
Commoo Pleas, id.-Court of Grand Sessions, 148-ju<;tices of the
peace, 149.


MORAVIANS, Bl.


MORTGAGES, 77. (For the laws relatillg t .. mortgllgesll7ld the regist"IItitm
of mortgage rleeds in different colonies, seethcse col..,úes.)




NORFüLK ISLAND, 600, n, and 672, n,


O.


74-3


N.


I~DEX.


OATHS,81.


OFFICES in the colonies not to be void on the death of the King, 77.


OFFICERS, colonial, appointed pro tempere, how paid, 30, 31,34 and n,
-aceounts of, how audited, 78.-fees of, in Vice-Admiralty Courts,
how to be regulated, 79.


Ol\DINARY. See GOVERNOR.


P.


l
'ARLIAMENT, THE BRITISlI-its power over colonies, 10 to 16,


and n.~acts of, imposing regulations on the British colonies, 68 to 81.
PLANTATlON. See COLON~.


NAVlGATION CODE, 69, et sec,


NEVlS, Statute of Charitable Uses uot applicable to, 9, n.-a dependency
of Antigua, 123-description of, 150-history and constitution, id.-
collection of laws, 153-generallaws of the colony, 154-Courts, 156
-Court of Chancery, id.-Court of King's Bench and Common Pleas,
id.-CourtofOrdinary, id.-Small DebtCourt, 157-Courl of Vice-
Admiralty, id.-Court of Error, 158.


1l.1t"W i}1\\YNS,WICK, 412-Courts, id.-registration of deeds and wil\s,
413-wílls, id.-debts, 414-frauas and perjuries, id.-rate of interest,
415-absent proprietors, id.-dower, id.-absconding debtors, 416-
laws of the province, id.-estates tail, 417-insolvent debtors, id.


NEWFOUNDLAND, how acquired, and what legislation subjectto, 21-
aet for the aumiuistration of justice in, 22 and n.-is in future to have
a Representative Assembly, 22, n.-certainIaws in, continued, 79 -de-
scription of, 418-history and constitution, id.-Court of Vice-Admi-
ralty, 422-Charter of Justice, 423-·royal instructions as to the admi-
nistration of the government, 435-proc1amation as to the constitution
of the general assembly, 449.


NEW SOUTH W ALES, how aequired, and what legislation subjeet to,
21-deseriptionof, 600-hislory and constitution, 601-civil govern-
ment, 606-Courts, 608-the Supreme Court, 608, el ,eq.-Circuit
Court, 617-Vice- Admiralty Court, id.-general and quarter sessions,
id.-Courts of Request, 61B-the Archdeacon's Court, id.-Court of
Appeals, 619-trials, 620- attorney-general, judges, barristers, and at-
tornies, 621-laws, 622-colonial acts, 625-Charter of J ustice, 627.


NOVA SCOTIA, description of, 454-history and constitution, id.-Iaws,
456-Courts, id.


ORDINARY-Court of, 59. (See also the tille" COUI·ts" in the different
eotcnies.)




744 INDEX.
POLICY_Court of, see B,.itish Gniana-Council of, see Cape of 0,,00'


Hope.


POSSESSION OF THE REALM AI'D" BRITISH POSSESSIONS."
See COLONY.


Q.


PRÉROGATIVE. See
PRINCE EDWARY"i'; : 462-history and constitution, id.-


laws, 464-cOlli.);-ii!.-wills, id.-debts~ id.-insolvent debtors, 46
-conveyances ofreal es~, id.
~~ k


PRIVY COUNCIL-ia to decide appeals fromthe Vice-Adniiralt
abroad, 79-probable origin of ita jurisdiction, lO9-rules for
appealsto the, IlI-judicial commitlee of, how lo be formed,


PROBATE-grant of, in England-its effect in the colonies, 105.
PROPRIETARY GOVERNMENTS, 3,17, and n. 19.20, n,


u


PROVINCIAL ESTABLISHMENTS, 17 and n., 19.


QUAKERS,81.
R.


REGISTRATION OF WILLS, DEEDS, &c.(See t Df the
varions Colon;es.) _ ' ,,' e « [


REPRESENTATlVE ASSEMBLIES-in whomthe righ 'tuting
is vested, 9, lO-acts made by, in the colonies, how conlil1lled. 4I.


S. 1tc~,
SAINT CHRISTOPHER AND ANGUILLA-dependenton thegovem-~,


ment of Antigua, 123-description oí, 159-history and constitution,
id.-collection of laws, 16:}-generallaw of the colony, ]64-Courts
of justice, 165-Courts of King's Bencb and Common Pleas, ]66'-
of Ordinary, id.-of Vice-Admiralty, id.-Court of Error, 167.-..of
Eseheats, id.-prosecutions, iLl.-Court of Quarler Sessions, ]6B-
justices oftbe peace, id.-coroner, id.


SAINT LUCIA~oined, as to the administration of justice, with Britit'~:<~' .'
Guiana and Trinidad, ia, n.-was a proprietary govemment, 20, n, ':,-;,'. ,,',."
what law in force in, 23-0rders in Council for the administration . ,.', , _,'
justice in, (see Briti.sh Guiana,) 267, 27'4-order in council respecti ',' _ ' ',:;·'i
the qualification of assessors in the Royal Court of, 288, et Stq.-d' ,- ., '"
scription of, 299-history and constitution, id.-Iaws in, 300-Ia "
officors,301-parti<;ular laws, id.-p'ol1ection of laws, 303. ' •


SAINT VINCENT-not subject to the 4! per cent, duties, 51, n.-
a dependency of Barbados, 123-descl'íption of, 214-history and
constitution, id.-barristers and attornies, 218-col1ection of laws,
219-general law of the colony, id.-Courts, id.-Court of Chan-
cery, 220-Courts of King's Bench and Common Pleas, id.-
Court of Complaints, 222-Court of Ordinary, id.-Court of Admi-
raIty, id.-Court of Appeal and Error, 223-Criminal Court, Grand
Sessions, id.-judges, 224-provost marshal and coroner, id.


SARK-description of, and government, 706.