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

A


SU~lMARY
01'


COLONIAL LAW,


PRACTICE OF THE COURT OF APPEALS


TIlE PLANTATIONS,


,ANU 01" TIlE


LA \VS AND THEIR AD~IINISTHATION
[N


ALL '.fHE COLONIES;


WtTH


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


--_ ..


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


LONDON:
s. SWEET, 3, CHANCERY LANE;


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


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


1834.




LONDON:


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




'l'0


THE IUGHT HOl\OURABLE


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


~c. ~C. &,C.


'l'HIS WORK


IS,


BY PERMISSION,


MOST RESPECTFULLY DEDICATED


BY


llIS VERY OBEDJENT


ANO


llUMBLE SERV ANl',


THE AUTHOR.






INTRODUCTION.


As, 1 believe, it is general1y known in the legal
profession that one of its most learned and able
members had begun a work upon the subject of
the Laws of the Colonies, and that the materials
he had prepared wel'e handed over to me, it is but
justice to the high and wel1-earned reputation of
that learned person clearly to explain the nature
of the transfel', in order that he may not be held
responsible fol' any defects in the work that ought
rather to be charged upon me. Mr. Serjeant Ste-
phen, on putting into my hands the matter he
had collected for the early portion of this volume,
declared that he considered himself no longer to
have any connection with it; and feeling, as 1 díd,
the perfect pl'opríety of such a dec1aration, 1 have
never since ventured to trouble him upon the sub-
ject. 1 have freely exercised the uncontrolled
authority given me over the materials thus fur-
nished, and as the work now stands 1 alone am
answerable fol' its defects.


a




II INTRODUCTION.


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


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




INTRODUCTION. 1Il


1 am but too sensible that 1 have not been able
to present to the profession so complete a work as
they could have desired, nor as 1 could have
wished to offer to their acceptance. 1 claim in-
deed little merit beyond that of industry and care
in the selection and compilation of authorities,
and 1 am fully aware that the chief recommenda-
tion of rny labours will be, that the reader may
find collected, in one volume, information for which
he would othenvise have to search through rnany
different works, some of them not very easy of ac-
cess. Let me avail myself of this opportunity to
acknowledge the kind assistance I have received
from rnany private friends, without whose aid it
would have been impossible for me to complete
the task 1 had undertaken. The amount of in-
formation upon the administration of the law in
the Colonies, to be obtained from works published
in this country, is insignificant in the extreme, ex-
cept in the instance of those Colonies respecting
which the West India Cornmissioners have made
and published their valuable Reports. The books
upon this subject published in the Colonies are
not numel'OUS; but few of them find their way
to this country, and those few are only to be
found in the libraries of private individl1als. It
might have been supposed that the colonists, with
a view to their own interests, would have for-
warded to the library at too Colonial Office, and to
the British Museum, such works as would enable


a2




iv INTRODUCTION.


any one who desired it to obtain complete and ac-
curate information on any subject which, for the
benefit of the Colonies, he might wish to bring
under public discussion. But such has not been
the fact.* Under thcse circumstances 1 have been
obliged to borrow from all quarters books that
could be found no where hut in prívate libraries ;
and for the readiness with which these were lent,
not only by personal friends but by gentlemen to
whom 1 had before been a stranger, 1 have to ex-
press my sincerest obligations. 1 have been most
particularly indebted for assistance to Mr. F. Pol-
lock, M.P., Mr. Godson, M.P., Mr. Lloyd, M.P.,
Mr. Dwarris, Mr. W. Bruce, Mr. T. De Sausma-
rez, and Mr. H. W. Parker. The last of these
gentlemen, who had already published an excellent
little work upon Van Diemen's Land, and whose
attention had been particularly directed to the
Australian Colonies, voluntarily offered (and his
offer was rnost gladly accepted) to contribute that
portion of the book which related to those Colo-


'" Upon a Colonial question of considerable importance, an
honourable member of the House of Commons was recently
compelled to apply to his various acquaintances for the means
of obtaining that information which none of our public libraries
affi)fded him. Even the Almanacks of the different Colonies,
works containing more authentic legal information than our
knowledge of what Almanacks are in this country would lead UB
to suppose, are rarely to be met with whcre they might most
be expected to be found.




INTRODUCTIO:'\ . v


nies. To MI'. Greville and MI'. Devey, of the Privy
Council Office, and to MI'. Mayer, the Librarian of
the Colonial Office, 1 also beg to offer my best
thanks for the assistance so politely and readily
afforded by them.


The first portion of this volume was printed be-
fore the Autumn of last year, but circumstances
have unavoidably delayed its publication till the
present momento It has been suggested to me in
the interval, that as the condition of the East ln-
dian eolonies has been altered since 1 began the
work, it would be extremely useful to print a vo-
lume upon the administration of the laws in those
important dependencies; and as 1 was honoured
with this suggestion from Sir Alexander Johnston,
for whose services in Ceylon this country and that
Colony have equal reason to be indebted, 1 felt it
impossible to hesitate about adopting it.


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


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




VI lNTRODUCTlOX.


desired to obtain the privileges of a British subject
in that Colony. He was subsequently sent out of
the Colony by an order of the Government. The
question under these circumstances was, whcther
any Governor of a Colony could give the rights of
a naturalized citizen to a foreigner who carne to
reside within the Colony. The opinion that he
could not was assertcd in the Colony, and at first
adopted in England on the authority of Lord Coke,
who says, * "The King cannot grant to any other
to make of strangers born, denizens; it is by the
law itself so inseparably and individually annexed
to his royal person (as the book is in the 20 Hen.
7, fol 8,) for the law esteemeth it a point of high
prerogative, jus majestatis et inter insignia summce
potestatis, to make aliens born subjects of the realm
and capable of the lands and inheritances of Eng-
land in such sort as any natural born subject is." In
this passage, which is still good law, no notice is
taken of a distinction that has however been raised
by subsequent writers, adopted by Colonial Acts,
confirmed at home, and also by Acts of the Bri-
tish Parliament itself. That distinction is, that
the right of a naturalized subject may be granted
to a man in a Colony without conferring upon him
similar rights in the mother country. So long ago
as the 35 Cal'. 2, an act was passed by the Legis-
lature of Jamaica and confirmed in this country,


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




l!l<TRODUCTION. Vll


by which, to encourage the settlingofthe island, the
Governor 01' Commander-in-Chief was authorized
undel' the broad seal of the island, to make aliens
" being already settled, or such as shall hereafter
come to settle and plant in it, having fil'st taken
the oath of allegiance, to be to aU intents and pur-
poses fuI1y and compIeteIy naturalized." The ap-
plication of the four last words is shewn byanother
section, which declares that such persons "shall


\


have and enjoy, to them and their heirs, the same
immunities and rights of and unto the law and pri-
vileges 01 this island, in as fuU and ample a manner
as any of His Majesty's natural born subjects." A
similar act was passed by the Assembly of Antigua
in 1702, and confirmed at home May 8th, 1703.
That act declared that Protestant aliens desiring
to become inhabitants, should be brought before
the Govcrnor and Council, and having taken cer-
tain oaths and acquired ten acres of freehold land
in the country, 01' a house in any town in Antigua,
might acquire and dispose of all kinds of property
in the islalld as if they were natives. In addition
to these local acts, the English statutes 13 Geo. 2,
c. 7, and 2 Geo. 3, c. 25, made similar provisions
as to the naturalization of foreigners in "any Bri-
tish Colony in America," and tbe 13 Geo. 3, c. 25,
declared that all persons becoming His Majesty's
born subjects, by virtue of the two preceding acts7
might hold places of trust and take grants of land
from the crown, such uot being pIaces of trust or




vm .. INTRom;CTION.


grants {)f land within th,e Unlted Kingdom. The
act of~l Wm. 4, c. 53, pássed with respect to LoweI:,
Canada, enabled foreigners who have been na':
turalized by the Legislative Assembly of Lower
Canada to vote for members of the Assembly, and
to be summoned or elected to "Seats in it. It was
therefore' clear th~t the law had formally recog-
nized the authority of Colonial Govcrnments to
grant this limited species of naturalization, and ..
the person improperly sent out of the Colony· was
allowed to retul'l1.


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


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


---~-----,


ERRATA.


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


CHARLES CLARK.


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




A


SUMMARY


OF


COJ.JONIAL L'A 'V.


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


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


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




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


are subject.


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


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




COLOKIAL LAW.


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


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


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


I. 1 n its colonial possessions, the crown possesses
the same right of sovereignty, and (in general) the same
prerogative as in the mother country.(Q) The political
and military administration is consequently vested in
a governol', appointed by the king; and the laws are
administered and executed in the king's name by the
same functionary, and by other executive and judicial
officers acting undel' the crown.(3)


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


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


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


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


B 2


3


Laws to which
the colonies are
subject.




4< A SU;>OlMAllY OF
On the other hand, the king is bound in the colo-


nies, as at home, to govern according to established
law.( 4) It is necessary, therefore, to consider to what
laws the colonies are subject.


In doing this, it will be necessary to distinguish the
colonial posscssions from each other, in reference to the
manner of their acquisition by the parent sta te. Theyare
acquired, 1, by conquest; Q, by cession under treaty;
01' 3, by occupancy, viz. where an uninhabited country
is discovered by British subjects, and is upon such dis-
covery adopted 01' recognized by the crown as part of
its possessions.(5)


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


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


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


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


(6) Tlle rule is thus broadly
.tated, (Calvin's case, 7 Reports,
34,) tha! "if a Christian king
sbould conquer a kinguom of au
inlidel, aud bring it under his sub-
jection, there ipso facto the laws of
the infidel are abrogated, for that
they be not only against Christia-
nity, but agaillst tbe laws oi Gou
and nature containeu in the deca-
¡ague." In the case of B!a"kq"d v.


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




COLO~IAL LAW.


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


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


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


5




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


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


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


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


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


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


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




COLONIAL LA W.


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


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


In giving a new constitution to a conquercd 01' ceded
colony, if the Crown provides (as has hitherto usually
been the case) that a Representative Assernbly shall be
summoned among the inhabitants of the colony, with
the power of making laws fol' its interior government,
it has been decided that the Crown cannot afterwards
exercise with 1'espect to such colony its formel' right of
legislation.(l) It has impliedly renounced that right
by the appointment of a legislative power within the
colony itself.


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


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


,


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


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


7




8


\


A SUMMARY 01'


and such a cololly is lIot :;ubject to the legislatioll of the
CrOWll, fol' the King cannot pretend in that case to the
rights of a conqueror,(3) but the subjects of Great
Britain, the diseoverers and first inhabitants of the
place, carry there with them theil' own inalienable birth-
right, the laws of their country.(4)


But they carry only so much of these laws as is
"applicable to the condition of an illfant colony; such,
fol' instance, as the general rules of inheritanee, and
protection from personal injUl'ies. For the artificial re-
finements and distinctions incident to the property of
a great and commercial people, the laws of poliee and
l'evenue, (sueh especially as are enfol'ced by penalties,)
the mode of maintenance for the established clergy, the
jurisdiction of spiritual COUl'ts, and a multitude of other
provisions,(5) arc neithcr necessary nor convenient for


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


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


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


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


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




COLOl'iIAL LA W.


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


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


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


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


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


9




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


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


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


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


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


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


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


·1 j




COLONIAL LAW.


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


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


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


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


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


11




12 A SUlIlMAltY 01'


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


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


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




COLO~IAr. LA\\'.


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


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


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


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


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


13




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


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


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




COLONIAL LAW.


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


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


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


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


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


15




16


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


A SUl\DrARY OF


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


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


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


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


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


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


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




COLONIAL LA W.


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


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


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


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


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


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


e


17




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


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


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


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


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


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




COLONIAL LAW.


13. Trinidad.
14,. Virgin Islands.


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


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


Coast.
In the ludian Seas:-


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


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


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


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


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


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


c2


19




20


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


A SUiIlMARY OF


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


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


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


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




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


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


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


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




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


A SUMMARY OF


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


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


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


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


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


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


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


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




COLONIAL LAW.


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


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


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


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




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


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


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


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


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


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




COLONIAL LAW


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


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


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


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


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


25




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


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


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


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




COLONIAL LAW.


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


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


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


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


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


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


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


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


Tbcir Constitu-
tiUIlS,




fZ8


Of 'he Guver-
1J0f.


A SUMMARY Ol!'


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


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


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




COLO~IAL LAW.


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


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


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


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


29




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


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


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


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


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


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




COLONIAL LAW.


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


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


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


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


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


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


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


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


31




A SUMMARY OF


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


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


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


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


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


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




COLONIAL LAW.


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


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


He is also vice-admiral within the extent of his go-
vel'nment. As such he is entitled to the rights of
jetsam, flotsam, &c., and in time of war he issues his
warrant to the judge of the Court of Vice-Admiralty to
grant commissions to privateers.


Lastly, a colonial governor, besides various emolu-
ments arising from fines, fees, forfeitures, and escheats,
has an annual provision settled upon him by act of As-
sembly for the whole term of his administration in the
colony. (7) Fol', in order that he may not be tempted to
prostitute the dignity of his station by Ímproper con-
descensions to leadif.lg men in the Assembly, he is re-
strained by his instructions from accepting any salary,
unless the same be settled upon him by law within the
space of one yeal' from his entrance upon the govern-
ment, a\1(1 expressly made irrevocable during the whole
terl1l of his administl'ation of it.


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


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


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


D


33




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


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


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


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


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


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


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


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




COLONIAL LA W.


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


85


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


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


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


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


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




36
/


A SUMMARY OF


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


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


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


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


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




COLONIAL LAW.


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


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


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


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


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


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


.37




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


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


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


Of lhe House of -
Assembly.


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


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


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


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


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


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




COLONIAL LAW.


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


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


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


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


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


39




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


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


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


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


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




coLONIAL LAW.


Acts of Assembly, after being passed by the as-
sembly amI council, not only require thc assent of the
governor, as represcntativc of the crOWll, but are also
in an cascs subject to disallowance 01' confirmation by
the King in COllncil. All private acts, and in some
Ínstances public acts, are passed with a clause sus-
pending their opcration till the pleasllre of the King be
known. In that case they have uf comse no effect in
the colony till the royal will be ascertained. But in
general, public acts are passed without a suspending
clause, and when in this fonl1, they come into legal
operation in the colon y illlll1ediately on receiving the
governor's assent, and so continue until notice is given
there of their disallowancc at home. (7)


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


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


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


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


41


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




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




COLONIAL LAW.


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


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


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


piece ofpaper on which tbe order j.


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


43




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


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


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




COLONIAL LA W.


real efiect of the modero Jt was made to l'emove a
difficulty whicb hao m'isen respecting one particular
class of colonial statutes, those namely which contained
a clame suspending their operation till the pleasure of
the King \Vas known. This is the only description of
statutes respecting which it can be said that His Ma-
jesty's confirmation is H necessary to give them validity
and effect." \Vithout the assistance of such a general
rule, it would llave been impossible to know in any
particular case whether the statute would 01' would not
at some future time be called into operation, an un-
ccrtainty peculiarly embarrassing in reference to pri-
vate acts, which invariably contain a suspending
clause. (1)


The acts when passed are deposited in the Colonial
Secretary's Office ; (2) and official copies of su eh ofthem
as have been sent home are also kept in this country ;
those .prior to 1782 in the office of the Board of Trade,
those of suhsequent date in the Colonial Office. In
1782 the husiness of reviewing the acts of the colonial
legi,latures previously to their allowance by the King
in CounciJ, was transferred f1'Om the Board of Trade
amI Plantations to the offiee of the Secretary of State
for the Home Depal'tment, and aftel'wards to the
Secretary of State for the Colonies, in whose office are
1l0W to he found aH certified copies of acts, and other
official documents since thut periodo (3)


45


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


________________________ t/¡e rrown.


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


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


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


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




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


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


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




COLONIAL LAW.


books 1:11' alIowing such appeals is this, that without
tllem the rules and practice of law in the colonies
might by degl'ees insensibly deviate from thosc of the
mother country, to the diminution of hel' superiority. (5)
Again, the King, as supreme head of the empire, has
the sole prcrogativc of making peace and war, treaties,
leagues, and alliances with foreign states; and the
colonists are as fuUy bound by, and subject to, the
consequences the1'cof, as the inhabitants within the
realm. (6) He has also the prcrogative of regulating
all the colonial military estabJishments both by sea and
land, quartering troops in such towns and places in the
\llantations as he may deem best, augmenting them at
pleasure, and retaining them in the colonies at aH times
and seasons, as well in peace as in war, not only with-
out but against the consent of the Assemblies. (7)


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


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


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


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


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


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


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


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


4'7




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


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


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


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


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


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


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


Wilh respect lo Barbadoes and




COLONIAL LAW.


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


The gl'ant was made by Barbadoes (though not till
after a strong resistance) in order to put an end to the
proprietary government and the claims under it, ami
at the same time to settle the right of the then holders
to their pos se ssio n s, (B. Ed w. vol. ],) and by the Virgin
IsIands as the price at which a representative Assembly
was to be granted them. In their petition to the King
they promise that if such an assembly was conceded,
they would grant an impost of four and a half per cent.,
H similar to that which was paid in the other Leeward
Islands." The King granted the pl'ayel' of the petition
expressly on the above condition. The proclamation
for calling the Assembly together was dated 30th No-
vember, 1773, and it met on the 1st February, 1774.
Its vel'y first act was the establishment of the pl'omised
duty, (B. Edw. vol. 1, p. 4.60-1). The attempt to ob-
tain a similar grant from the Assembly of Jamaica had
long before utterly failed. That island possessed an
Assembly, and there was no other boon fol' which it
---------------------------------


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


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


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


E




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


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


The produce of this duty (which forms what i8
called the fout' and a half per cent. fund) is payable
into his Majesty's exchequer ; (3) but out of it certain
sums are allowed by His Majesty's govel'nmcnt towards


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


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




COLONIAL LAW.


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


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


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


The same "igh RutllOrity "fter


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


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


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


51




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


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


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


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


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




COLONIAL I~A W.


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


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


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


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


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


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


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


53




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


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


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


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


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


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


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




COLONIAL LAW.


ever, to the important exeeption already notieed, as to


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


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


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


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


English eourts, though framed in a great measure upon


tbat model. There are no records on parchment, but


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


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


often united io the same persons; but they are also


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


qualification fol' a praetising counsel, that he should


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


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


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


solicitors in thc West Indies, not qualified as eounsel,


arc in sorne colonies required to produce a certificate


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


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


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


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


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


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


55




56 A SUM"J.\.IARY OF
under the signet and sign manual, amI whose duties
are similar to those of the same officers in England,
but whose actual services are in some respects more
extensive, as the whole business oi' instituting and
conducting criminal prosecutions against free persons is
often exclusively vested in these public functionaries. (5)


In the Court of Chancery the govcrnor is president,
assisted, in sorne settlements, by the members of coun-
cil, in which latter case thc dccision is by majority of
vote:;. 'rhe judges of this court are supposed to have
a11 the authority of the Lord Chance110r of England in
the English Court of Chancery, except in cases whoUy
inapplicable to the colony. Under this general juris-
diction they sometimes also Jeal with cases of lllnacy,
though that would s~em, upon principIe, rather to be-
long to the governor alone, as the general depository
of the King's prerogative. 'l'here is no system of bank-
rupt law; but the principIe of cessio bonorum is ac-
knowledged in the establishment of jurisdictions in
some colonies for the relief of insolvent debtol's; and
this remedy extends to persons who are not traders.
Orders and decrees of the Court of Chancery are en-
forced, as in England, by process of contempt and se-
questration; hut it has also a process on a decree for
payment of money, which is in the nature of an execu-
tion, and operates on the goods and lands. (6) 'l'he
appeal is to the King in Council, subject to certain re-
gulations, which there will be occasion to notice more
particularly when treating of the general subject of
appeals ..


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


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


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




COLONIAL" LAW.


which are heId under those denominations in EngIand ;
hut ¡nstead of the practice of fines and recoveries, cer-
tain other modes of proceeding, with similar objects in
view, have been devised by the different coIoniallegis-
latures. The puisne judges of this court are usually
appointed by the governor, with the advice and consent
of the Council, and commissions are made out to them
under the seal of the colony. They are selected from
such persons resident in the colony as appear to be
eligible from their characters amI circumstances, hut
have seIdom been educated fOL' the legal profession.
TÍley hoId their o1Iices at the pleasure of the Crown ';
and the salary of the chief justice (for the puisne jmlges
in general aet gratuitously) is paid, when there is a
eoIoniallegislature, by gl'ant of theHouse of Assembly:
in other cases it is provided for by the votes of the
House ofCommons.


The trial by jury is in force in most of those colonies
now under consideration; but special juries not being
easily adapted to the circumstances of a small society,
are in use in very few instances. (7) The commission-
ers, however, in recommending that lawyers should
alone be placed on the judgment seat, have advised, in
many instanees,that the class of gentlemen out of which
the assistant judges are now selectecl should be em-
ployed to furnish special juries in their respective
colonies. '];he proof of debts in this comt, whether
by specialty 01' simple contract, when the creditor re-
sides and the debt occurs in England, is made in a
manner peculiar to the colonies, under the regulations
of the statute 5 Geo. ~, c. 7. By this act it il:) provided
that in such cases it shall be lawfuI for the plaintiff and
defendant, and also tu and for any witness, to verify


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


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




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


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


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


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




COLONIAL LAW.


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


Of the Court of Ordinary, the governor is sole
judge. The probate of wills, granting letters of ad-
ministration, amI marriage licenses, form the subject-
matters of his jurisdiction. AH wil1s are proved, lmt
the probate is conclusive only as to personalty. The
solemnities requisite to tbe valdity of a will are nearly
the same as in England. Marriages are either by
banns 01' by license from the governor, in his capacity
of Ordinary. They have no canonical hours in tlle
colonies, and marry at what time tbey please. A direct
amI immediate appeal líes from this comt, but it is
doubted in sorne colonies whether that appeal is to the
King in Council, 01' to His Majesty as heatl of tlle
churcb (3). In Jamaica, the Attorney-General of the
colony, and the Secretary there, in answer to the com-
missioners, stated that the appeal lay directly from the
Court of Ordinary to the King in Council. (4)


The Court of Admiralt.1J or Vice-Admiralty has two
bl'anches, a Pl'ize and an Instance Comt, both held by
commissÍon issuing from the High Court (5) of Admi-


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


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


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


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


59




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


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


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


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


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




COLONIAL LAW.


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


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


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


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


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


61




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


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


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


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


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




COLONIAL LAW.


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


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


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


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


63




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


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


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


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


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


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


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




-/
;


COLONIAL LA W.


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


As a security against any illegal additions to the
number of slaves by secret violations of the acts for the
abolition ofthe slave trade, systems ofregistl'ation were,
under the authority 01' by the influence of his Majesty's
government, adopted in the ditferent sIave colonies.
As a necessary result of the Slavery Abolition BilI,
the registry of sIaves, as such, must cease; but as the
question of freeman or apprenticed labourer will now
take the place of that of freeman 01' slave, there will pro-
bably be sorne similar mode adopted to ascertain the num-
ber of apprenticed labourers, with a view to prevent the
illegal increase of that number by any person entitled
to their services. It has be en thought advisable, there-
fore, to give a sketch of the mode of slave registration .
. On the 9!8th March, 1812, an order in council was


passed for the establishment in the Island of Trinidad
of a general registry of slaves. The details of this
measure are very voluminous. N othing beyond the
general outline need be stated in this place. Within
one year from the promulgation of the order, every
proprietor in the island was required to make on the
same day, to a public office created for the purpose, a
fun return of the number of his slaves, in which the
names, ages, and stature of each wel'e to be specified.
These were denominated the original returns, and the


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


F


65




66 A SUMMARY OF
record of them, the original registry. An exact com-
pliance with these regulations would, it is evident, fur-
nish a perfect enumeration and description of aH the
persons within the colon y, who !tt the time at which it
might be made were in a servile condition. Deaths and
births, enfranchisements and importations froID other
British Settlements, would, however, continualIy be
changing the numbers of this class of society, and the
original registry would consequently become erroneous.
Annual returns, therefore, were directed to be made by
aH the proprietors, specifying upon oath, with similar
minuteness of description, every slave who had been
added to their stock since the latest return, and certify-
ing in what manner every diminution of their numbers
had taken place. This registry formed the sole evidence
in aH judicial proceedings upon the question of the ser-
vile condition of persons resident in Trinidad, 01' of the
right of property in a slave. On every question of
Rlave and free, the production of an extract from the
registry, certified un del' the hand of the proper officer,
was made essential to the pl'oof of the master's title.
The absence of such an entry was declared to be con-
clusive evidence of the freedom of the asserted slave.
There were also provisions for remedying involuntal'Y
errors in the return, and for protecting the rights of in-
fants, lunatics, and married women, and of persons
claiming a future 01' reversionary interest in a sI ave, it
being obviously equitable that they should not suffer
for any neglect in completing the registry, when they
were unable to prevent it. Of all returns, whether ori-
gina.l or annualj exact duplicates were directed by the
order to be transmitted to t.he Colonial Office in
England; but the present place of deposit is an office




COLONIAL LAW.


(established in this country by act of parliament (6)
passed since the date of the order) for receiving and
registering such returns from all the colonies. 1 t was
also provided that no colonial registrar should himself
be allowed to possess any slave; that no suit instituted
under that order, by any person claiming his liberty,
against a pretended owner, was to be barred on the
ground of the alleged servile condition of the plaintiff
01' prosecutor; and that the evidence of indifferent per-
sons, being or alleged to be slaves, should be admitte(l
in all actions 01' prosecutions commenced under the
order,-subject, however, to all just exceptions to their
credit.


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


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


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


F~


67




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


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


The authority of Parliament over the colonies has
been exercised chiefly in the establishment of certain
commercial regulations that were designed to secure to
the mother country (in imitation of the practice of other
states) the full and exclusive benefit of her colonial
possessions. Of these, the weH known law passed in
the lQth year of Chao ~, c. 18, commonly called by
way of eminence the Navigation Act, was the founda-
tion. The restrictions of that act were extended and
incl'eased by many subseqúent statutes, fol'ming altoge-
thel' a general system of navigation law, which, as fal'
as it regarded the colonies, was said to embrace two
distinct objects ;-6r8t, the augmentation of oul' naval
stt·ength by an entire exclusion of foreign shipping from
our plantation tl'ade ;-secondly, the securing to Great
Britain aH the emolllments arising frol11 her colonies, by
a double monopoly, viz. a monopoly of their whole im-
port, which was to be altogether from Great Britain,




COLONIAL LA W.


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


Hut as this system was -wholly abrogated, and a new
code of trade and navigation established by certain
acts passed in the reign of Ilis late Majesty, it is un-
necessary to enter farther into the consideration of its
provisions. (8) That new code originally consisted of
several acts from 6 Geo. 4. c. 105, to c. 114, both inclu-
SIve. It was extended by the addition of several acts
passed to amend and explain these, and has been, in
the course of the last session of Parliament (1833)
completely repealed by the 3 & 1, Wm. 4,. c. 50, which
recites the former acts, anel declares tbat "it has become
expedient again to consolidate and further to amend
the said laws." That object has been effectcd by the
enactment of several other statutes. (9)


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


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


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


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


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


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


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


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


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


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


69




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


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


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


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


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


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


That no goods shan be imported into any British
possession in Asia, Africa, or America, in any foreign
ships, unless ships of the country of which the goods


granting Duties of Customs. (6 G.
4, c. 111.)


3 & 4 W. 4, c. 57.-An Act for
the Warehousing of Goods. (6 G.
4, c. 112.)


3 & 4 W. 4, c • .'>8.-An Act lo
Granl cerlain Bounties and AlIow-
ances of Customs. (6 G. 4, c.
113.)


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


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


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


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


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




COLONIAL LAW.


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


'1'hat (with certain exceptions) no ship shall be ad-
mitted to be a British ship, unless duly registered and
navigated as such, viz. navigated by a master who Ís a
British subject, and by a erew whereof three-fourths at
least are British seamen; and in coasiing voyag,es about
the United Kingdom and the Islands of Jersey, &c. the
whole crew must be British seamen. (7)


That vessels under fifteen tons burden, wholly owned
and navigated by British subjects, though not regis-
tered, shall be admitted to navigate in the rivers and
on the coasts of the United Kingdom and of the British
possessions abroad to w hich they respectively belong ;-
and aH boats, Bl'itish-built, owned, and navigated, under
thirty tons burden, and employed in fishing on the
coasts of Newfoundland, Canada, Nova Scotia, or New
Brunswick, shall be admitted to be British ves seIs,
though not registered. (8)


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


The master and seamen are not to be deemed Bri-


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


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


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


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


71




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


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


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


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


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


(3) Sec.20.




COLONIAL LAW.


It is also provided that the privileges granted (4) by
the present law of navigation to foreign ships, shall be
limited to the ships of those countries which having
colonial possessions sha11 grant the like prívíleges to
British ships; or not having colonial possessions shall
place the commerce of this country upon the footing of
the most favoured nation; unless His Majesty by order
in council shall deem it expedient to grant the whole or
any of such privileges to a foreign country not fulfilling
those conditions.


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


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


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


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


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


73




A SUMMARY O.i"


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


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


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


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


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


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


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


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


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


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




COLONIAL LAW.


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


The act 4 Geo. 1, c. 11, entitIed An Act "for the
further preventing Robbery, Burglary, and other
Felonies, and for the more effectual transportation
of Felons, and unlawful exporters of Wool, and for
declaring the law upon so me points relating to Pirates,"
was by the 9th section extended to "all His Majesty's
dominions in America." That act was l'epealed by the
7 & 8 Geo. 4" c. 27, s. 1, and the acts for amending the
criminal law passed since that time, in lieu of the
statutes then repealed, have been confined to England.


The act 5 Geo. 2, c. 7, entitIed "An Act for the
more easy recovery of Debts in His Majesty's Plan-
tations and Colonies in America," (and commonly called
Beckford's Act,) provides that "in anyaction 01' suit
in any court of law or equity in any of the said plan-
tations, relating to any debt 01' account wherein any
person l'esiding in Grcat Britain shall be a party, it
shall be lawful for the plaintiff or difendant, (2) and
also for nny witness, to be examined 01' made use of
by affidavit, (01' in case of Quakers, affirmation,) before
any mayor 01' chief magistl'ate of the cüy, &c., in 01'
near which he is resident, which affidavit certified and
transmitted," (as directed by the act,) " shall be of the
same force and effect in the colony"as if the defendant
had appeared and sworn the same matters in open
court, provided that the addition and place of abode
of the party swearing 01' affil'ming be stated in the


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


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


75




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


The same act also provides tbat "houses, lands,
negroes, and other hereditaments and real estates in
the said plantations belonging to any person indebted,
shall be liable to aH debts owing by such person to His
Majesty, 01' any of his subjects, and shall be assets for
the satisfaction thereof in like manner as real estates
are by the law of England Hable to the satisfaction of
debts due by bond 01' other specialty, and subject to
the like remedies and proceedings for seizing, selling,
&c., and in like manner as personal estates in any of
the plantations respectively are seized, sold, &c., fol'
the satisfaction of debts." That part of the clause
which respect:o; negroes had been }'epealed by 37
Geo. 3, c. 119, and of course would cease to operate
when the Slavery Abolition Act took effect; but not-
withstanding the repealing statute of Geo. 3, negroes
were in fact taken in execution in satisfaction of debts
in the colonies at the time of the Commissioners' Re-
port. (4)


By 4 Geo. 3, c. 15, seco 41, ce¡·tain penalties im-
posed by that act for the violation of its provisions
relative to the trade and revenue of the Bl'itish Colonies
in America, are to be recovered in any Court of Record
01' of Vice-Admiralty in the colony 01' plantation whel'e
the offence may have been committed. And this re-
gulation is still further extended by 3 & 4 W m. 4, c. 59,
the act by which the trade of the Colonies is now mainly
-----------~ ------------


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


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




COLONIAl. LAW.


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


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


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


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


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


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


77




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


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


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




COLONIAL LAW.


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


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


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


By seco 4 such fees are to be the only lawful fees
of the judges, officers, ministers, and practitioners of
such courts.


Copies of the regulations and tables of fees are to be
hung up in each court.


An appeal to the Admiralty (6) is given to any per-
son who shall fee! himself aggrieved by charges in the
said Vice-Admiralty Courts; and on summary applica-
tion the Court of Admiralty may order such charges to
be taxed.


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


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


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


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


79




80 A SUMMARY OF
acts relating to the island of N ewfoundland, after re-
citing 5 Geo. 4, c. 67, (relating to the administration of
justice in Newfoundland,) and the 5 Geo. 4, c. 68, (re-
gulating the celebration of marriages there,) and the
act 10 Geo. 4, c. 17, by which the two former
were continued to t11e 31st of December, 1832, and
that it is expedient they should continue in force till
altered or repealed by any acts (duly allowed) of the
House of Assembly, which His Majesty may at any
time see 6t to convoke within the said colony of New-
foundland, (and it has since been convoked,) declares
them to be continued till they shall be so altered 01'
repealed.


The second section declares that the duties now
payable in Newfoundland by the authority of divers
acts of Parliament, shall, when such Houses of Assem-
bly have been convoked, be payable, as they shall by
act of Assembly (duly allowed) direct; provided
that an annual sum, not exceeding 6550/., be applied
for the maintenence of the governor, the judges, at-
torney-general, and colonial secretary therc.


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


The act ~'Vm. 4, c. 15, by which the property of au-
thors in their dramatic productions is for the 6rst time
secured to them, extends to all the Colonies. The first
section gives to the author the sole right of causing his
pie ce " to be represented at any place 01' pIaces of dra-
matic entertainment whatsoeverin anypart oftha United
Kingdom, or the Isle of Man, Guernsey and Jersey, 01'
in any part of the British dominons," and forbids others
to represent it without his authority. The second sec-
tion gives him the power, in case such piece shall be
represented without his sanction, to sue for the penalty
" in any court having jurisdiction in such cases in that




COLONIAL LAW.


part of the United Kingdom, 01' of tbe British <lomí-
niOl'ls, in which the offence shall be committed."


The 3 & 1, \Vm. 4, c. 49, recites, "Whereas it is ex~
pediellt amI reasonable that the solemn affirmation of
persons of the persuasion of the people called Quakers
and of Moravians sbould be allowed in all cases wltere
an oatk is "equired;" it thel'efol'e enacts that "evel'Y
person of the persuasion of the people called Quakel's,
and every Moravian, be pel'mitted to make his ol' her
solemn affirmation 01' declaration instead of taking an
oath, in all places and for aH purg~es whatsoever
where an oath is or shaH be required either by the
common Iaw 01' by any act of Parliament all'eady made
or hereafter to be made, which said affirmation Or
declaration shaIl be of the same force and effect as if
he 01' she had taken an oath in the usual form." A false
affirmation to be punished as perjury.


This act does not mention the Colonies; but Prom the
very comprehensive terms employed in it, the rule as to
statutes of universal application (7) must be deemed to
opcrate upon it, amI to give it effect in all the Britisb
dominions. The 3 & 1· Wm. 4, c. 82, is a similar act
relating to "Separatists."


81


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


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


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


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


before the passiDg of the 42 Geo


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


G




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


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


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


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




11
.,


COLONIAL LAW.


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


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


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


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


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


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


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


83




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


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


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


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


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


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


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




COLONIAL LAW.


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


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


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


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


85




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


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


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


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




COLONIAL LAW.


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


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


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


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


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




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


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


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


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


The recommendations of the Com-




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


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


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


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


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


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


89




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


With respeet to the construction of eontraets made
in the colonies, it is to be observed that contl'aets made
abroad are expounded and have effect in England
aceording to the law ofthe country wherethey are made,
though the English law might affect them differently.
Therefol'e, if a cel'tain stamp be required by the law of
the colon y whcre the contraet was made, though not
required in England, the contraet, unless it has been
stamped according to the law of the colony, cannot be
enforced in England. (7) AmI if by tbe eoloniallaw
a chose in action is in any case assignable, the assignee
may in that case support an action in the English
courts, though choses in action are not assignable
here. (8)


So, the rate of interest on a debt is ealculated accord-
ing to the law of the eolony where it was contl'acteu,
though sued fol' in England, whel'e the rate is different ;
and in a CO)1rt of equity the debtol' is allowed the mte
01 excltange of tbe countt·y where the debt was con-
tracted. (9) In an action on a bill oI' exchange dl'awn
in BewlUda on a person in England, and also payable


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


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


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


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


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


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




COLONIAL LAw.


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


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


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


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


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


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


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


91




92 A SUMMARY OF
doctrine was held when the bond, contl'act, 01' mort-
gage was executed in England, in which case only
5 per cent. interest is allowed, independently of
the . statute ,14, Geo. 3. (5) So that it seems that only
5 per cent. interest can now be reserved on secu-
rities executed in England, and not made on land in
Ireland 01' the Plantations. In case a bond 01' othel'
debt contracted in Jamaica be made payable in Lon-
don, it has been held that the expense of commission
to the agent remitting the money falls on the debtor. (6)


As to the effect of a colonial 01' fOl'eign judgmellt,
an action may be maintained in England on a judg-
ment obtained in a comt of law Ol' equity in the colo-
nics, 01' elsewhel'e, out of the l'ealm; hut such judgment
is considered here only as a simple contl'act debt, for
which assumpsit is maintainable. It is therefore not
conclusively binding as an English judgmcnt would
be, (7) but the defendant is at liberty to show that the


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


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


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


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


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




COLONIAL LAW.


decision ought to have be en otherwise, and he should
not take issue upon it by a pIea nuI tiel record, hut hy a
pIea to the country. (8) If it do not appear by the tran-
sCl'ipt of the proceedings in the colony, that the party
against whom the judgment wasobtained was at one time
01' other resident there, 01' suhject to the jurisdiction of
the colonial court, but onIy that he was summoned by
nailing up a copy of the declaration at the court-house
door, no action can be maintained here on the judgment,
for a party cannot be bonnd by the judgment of a conrt
if he was never within its jurisdiction. (9) But an
action may be maintained here on a foreign judgment
obtained by default, which sta tes that defendant ap-
peared by attorney, without proving that the attorney
mentíoned had authority to appeal', 01' that the defend-
ant was living withín the jurisdiction of the foreígn
court. (1) Though, in general, a defendant sued in
England upon a foreign judgment, is at liberty to show
that it was erroneous, yet where an action was brought
here upon a covenant ente red into by the defendant to
illdemnify the plaintifffrom all debts due fmm a partner-
ship in which he had been engaged with the defendant,
and from aU suits instituted in consequencc of the


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


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


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


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


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


93




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


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


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


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


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


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


(.5) Ibid.




COLONIAL LAW.


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


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


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


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


95




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


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


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


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


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


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




COLONIAL LA W.


both parties were resident, but drawn on a person in
England, and afterwards protested here for non-
acceptance j and the defendant, whiIe he continued to
reside abroad, beca me a bankrupt and obtained his
certificate by the Iaw of that sta te, it was held that such
certificate was a bar to an action on the bill founded on
the circumstance of its not having been accepted. (9)
But a discharge under a commission of bankrupt in a
foreign country, is no bar to an action in EngIand
against the bankrupt by a subject of this country, for a
debt arising here. (1)


With respect to the Evidellce required in our Courts
as lo Colonial transactions, that matter is now provided
for by a recent statute. (52) The first section of that
statute recites the act 13 Geo. 3, c. 63, relating to
the examination of witnesses in India, and extends the
provisions of that statute, so far as they relate to the
examination of witnesses in actions at Iaw, "to all
colonies, isIands, pIantations, and places under the do-
minion of His Majesty in foreign parts, and to the
judges of the several courts therein, and to all actions
depending in His Majesty's courts of law at Westmin-
ster, in what place 01' county soever tlle cause of action
may llave arisen, and whether the same may have arisen
within the jurisdiction of the court, to the judges
whereof the writ 01' commission may be directed, or
elsewhere," Upon the 13 Geo. 3, c. 63, the Court of
Common PIeas held (3) that a mandamus might be
granted to the court in India to examine witnesses OIl
behalf of either a plaintiff or defendant in a civil action.
By s. 4·. the courts at Westminster, Laneaster, and


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


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


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


Bing.519.


H


9




98 A SUMMARY OF
Durham, may order the examination of witnesses withill
their jmisdiction by an officer of the comt, 01' may
order a commission for that purpose out of their juris-
diction, and may give such dil'ections touching the
time, place, and manner of such examinations as to
them shall seem fit. But by section 10 of the same
act, no examination to be taken by virtue of that act
shall be read in evidence at any trial without the con-
sent of the party against whom the same may be offel'ed,
unless it shall appear to the satisfaction of the judge
tbat the examinant 01' deponent is beyond the jurisdic-
tion of the court, 01' dead, 01' unable, from permanent
sickness, 01' otbel' pel'manent infirmity, to attend the
trial. Tbis sta tute was passed expressly for tbe pul'-
pose of extending to al) the colonies, &c. undel' the
dominion of His lHajesty, tbe provisions of tbe 13 Geo.
3, c. 63, s. 40, which rclated to India alone. (See also
B6 Geo. 3, c. 57, s. 38, post, and the 24 Geo. 3, c. ~5,
s. 88, therein recited.) It has however gone further than
that 01' any other statute on the subject of prosecutions
for perjmy, for it has declared (sec. 7) that if any per-
son examined under the authority of tbat act shall wil-
fulIy and corruptly give any false evidence, every per-
son so offending shall be deemed gnilty of perjury, and
may be indicted in the county wbere such offence was
committed, "01' in the county of lHiddlesex, if tbe
evidence be given out of England." (4)


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


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




COl.ONIAl. LA W.


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


HQ


99




100 A SUMMARY OF
sought to be cxamined are material to his defence. (5)
The prosecutor, however, is entitled to writs of man-
damus for this purpose, as. a matter of course, and on
an affidavit stating the special circumstances, writs of
mandamus have been issued on the part of the de-
fendant.


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


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


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




COLONIAL LA W.


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


As to Proof of Colonial 01' Foreign Law. - J t sometimes
becomes necessary in our courts to show what is the law
of a colony 01' foreign country,-for example, to show that
a contract made abroad was not valíd according to the
law of the place. In such cases the fOl'eign 01" colonial
law is considered as a fact, and must be proved accord-
ing to the same rules of evidence which apply to other
matters of fact. If the law is in writing, an authenti-
cated copy of it must be produced. If not in writing, it
must be proved by sorne witness acquaintcd with the
laws of the country in question. (9)


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


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


(8) Nelson V. Wlút/al, 1 B. & A.
19.


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


101




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


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


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


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




COLO::-;IAL LAW.


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


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


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


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


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


(5) luid. 690.


103




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




COLONIAL LAW.


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


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


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


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


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


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


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


Jer. 382.


105




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


A P P E AL S.


-


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


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


(·1) The arlmilli,trlltion uf juslice


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


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




COLONIAL LAW.


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


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


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


107




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


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


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




COLONIAL LAW.


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


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


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


109




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


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


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


From the Conllllon Law Caurt an appeal in the


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




COLONIAL LAW.


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


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


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


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


111




112 A SUMMARY OF


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


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


occasioned by the appeal, and also for dne prosecution


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


colony a copy or transcript, duIy authenticated, of the


several proceedings in the suit, including, of course,


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


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


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


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


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


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


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


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


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


lo iustruetiolls froID the Secretary


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


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


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


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


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


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


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


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


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




COLONIAL LAW.


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


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


113




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


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


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


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




COLONIAL LAW.


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


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


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


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


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


1 2


115




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


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


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


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




COLONIAL LAW.


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


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


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


117




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


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


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


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


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




COLONIAL LAW.


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


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


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


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


119




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


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


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


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


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




COLoNIAL LAW.


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


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


1!21






APPEN DIX.


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




ANTIGUA.


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


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


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


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


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


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


HISTORY AND CONSTITUTlON.


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


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


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




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


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


This isIand enjoyed a Jegislative assembly at least as
early as 10th April, 1668, this being the date of the
first Antigua Act mentioned in the printed collections.
And it appears by an Act of 13th April in the same
year, that courts of justice existed in the island at the
same periodo


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


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


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


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


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


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


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


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


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


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




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


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


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


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


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


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


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


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


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




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


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


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


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


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


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


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


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


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


COURTS.


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


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


(5) By act of 25 July. 1816.


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




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


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


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


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


Members of council, who in this island, it has been
seen, are the judges of the Court of Chancel'y, are
sometimes appointed as receivel's to estates. The
attorney-general said, "they are, and 1 think it objec-
tionable, they al'e in the habit of voting upon it, and I
think that is not right."-3d Rep. ·W. l. C. p. 11.


COUl't of Appeal and Error
Is constituted by the act (No. 475,) clauses 155,177.


It is composed of the governor and council. The
judges of tllf~ court, whose judgment is appeaIed
from, are not allowed to give any vote, but may
attend and assign reasons in support of the judgment.
The governor and council decide by a majority. No
time is limited fol' bringing a writ of error, but it is no
supersedeas to an execution, unless lodged in the
secretary's offices within fourteen days after judgment.
Before the writ of error is sued out, the plaintift' in
error gives security to answer such charges as sha1l be
awarded by the comt, in case the first judgment be
affirmed, appeals are not very frequent, and the ex-
penses in the isIand are saiJ. to be very inconsidel"
abIe. (9)


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


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


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




ANTIGUA. 129


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


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


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


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


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


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


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


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


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


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


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


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


K




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


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


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


JUSTICES OF THE PEA CE.


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


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


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




ANTIGUA. 131


CORONER.


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


COLLECTIO~ OF LAWS.


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


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


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


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


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




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


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


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




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


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


in breadth, and the inhabitants are somewhat more than
1500 in number. The coast is dangerous, but there is a
good road for shipping. The interior is level, and the
soíl fertile. The chicf trade of the colonists consists of
the sale of cattle, corn, amI provisiollS to the neighbouring
islands. Turtle are found on the shol'e, and the woods
contain deer and several kinds of game. The air is of
such purity that invalids reSOl't hither froro the other
parts of the 'Vest lndies fol' the recovcry of health.
Barbuda was first settled by a party of colonists from St.
Christopher's,Ied by Sir Thomas Warner. The settlers
were at first harassed by the Charaibs of Dominica, amI
compelled to desert th~ islc, but they soon afterwards
returned, and have nevel' sin ce quitted the place. The
whole of the island is the property of the Codrington
family. 4· Edw. ~30, 5th edito As this island is a mere
dependency of Antigua, it has no courts of its own, nor
any particular laws, but would seem to be subject in every
respect to the government of Antigua.


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




134·


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


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


IlISTORY AND CONSTITUTION.


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


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


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


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


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


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


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


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


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


Loft's Repol'ts, p. 660.




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


By lettel's patent, bearing date the 9th of Apl'il, 1764,
General Melvill was appointed govel'l1Ol' of Grenada, the
Gl'enadines, Dominica, St. Vincent, and Tobago, with
power by advice and con8ent of )1Ís council, as 800n as the
situatíon and circumstances of the islands would admit,
to summon general assemblies to make laws "not repug-
nant, but, as near as might be, agreeable to the laws and
statutes of Great Britain." (4) .


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


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


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


(5) In Ihis collectioll Ihe date as-


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


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


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




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


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


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


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


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


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


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


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


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


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


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


tion, li¡.liii.




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


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


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


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


"The governo1"s salal'Y," says J\ir. Edwards, "exclu-
sive of his fees of office, is .[1300 sterling, payable out of
the 4~ per cent. duties. Whether he has any addition
from the Colonial Assembly I am not informed." (7)


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


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


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


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


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


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


as to Elections, eited supo


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




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


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


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


COLLECTION OF LA WS.


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


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




DOMINICA. ]39


GENERAL LAWS OF THE COLONY.(3)


The laws in force in this island are its own acts of as-
sembly, and so much (it is conceived) of the common and
statute law of England adapted to the circumstances of
the colony as existed prior to the proclamation of 7th
October, 1763, and such acts of Parliament passed
since, as are expressly declared or manifestly intended to
apply to the island, 01" to the colonies in general.(4)


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


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


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


COURTS FOR THE ADMINISTRATIUN OF JUSTICE.


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


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


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


(4) See Ibe remarks, aupo on \he


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


(5) ~ Rep. W. l. C. 61.
(6) lbid.




140 DOMINICA.


Court 01 Chancel'!J.
The Court of Chancery, as at present constituted, was


established by an aet of the island, No. 14, Laws of
Dominica. It is composed, as at Barbados, of the go-
vernor, associatecl with the members of council, three of
whom, together with the commander-in-chief, are neces-
sary to form a comt. 'rhey are supposed to have the
same jurisdietion as the High Court ol' Chancery in Eng-
land.-Q Rep. W. 1. C. 34,.


Appeals lie to his Majesty in Council, on the usual terms
of the appellant giving bond in ,f500, with two sureties,
conditioned to prosecute the appeal withín ayear and
a day, which bond is lodged in Chancery. The Chief
Justice conceived there was no restriction from appealing
from all interlocutory orders as well as final decrees.
The court below decides on "the appealability of the
matter." Thc cffcct of the appeal ¡s, it is conceived, to
put a complete stop to all pl'oceedings in the colonial
Chancery.-2 Rep. W. l. C. 35.


Court of Commoll Pleas.
The constitution and practice of this Comt resemble,


but with considerable improvement, those of the supreme
civil comt in other islands. The establishment of the
comt is larger, consisting of a chief justice and fom other
judges, with the usual officers. The comt is held in
Rosean on the first Monday in March, April, May, June,
and July, and may be continued ancl adjourned at the
discretion of the judges.-Q Rep. 'V. 1. C. 37.


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


Complaint Cou1't.
A Court of Complaints, similarIy constituted to those in


the other islands, is established in Dominica fol' the reco-
very of debts to the amount of ,f25, which the Chief
Justice considers "quite high enough." Sorne differ-
ence of opinionprevailed as to debts not exceeding
cC6 lQs. 8d., which are recoverable under the Petty Debt
Act, and the Attorney-General conceived in no other
way. The Chief Justice considered tkis court as possess-
ing a concurrent jurjsdiction.-~ Rep. 40.




DOMINICA. 141


Court of Ordinary.
In the Court of Ol'dinary the governor sits, alone and


unassisted, in a11 cases. There is not any taxing officer in
this court.


AH original wills aneI testaments, after probate, are
lodged in the secl'etary's office, anel are nevel' suffered to
be taken away, copies duly authenticated being always
delivered.--2 Rcp. 'V. J. C. 40.


Court of Vice-Admiralty.
The Comt of Admiralty has an the jurisdiction of the


Instance Court in England; it is, besides, authorized by
acts of parliament to tl'y seizul'es, 01' penalties incurred by
breach of the laws of trudc, navigation and revenue.


'fhe chief justice is sule judge. Bis authority is from
the governor, lindel' his se al at arms to be "/tia deputy
amI surrogate in the Comt of Vice-Admiralty in this
island." Pirates, and other such offendel's, are sent to
Antigua for trial.--2 Rep. W. I. C. /W.


Cnurt Me1·clwnt.
This Court is revived and regulated by No. H, I,aws of


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


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


COU1·t of Appeal and Error.
The Governol' and jive of the Council fOl'm this Comt,


which receives appeals fmm the Common PIe as, as <loes
the Common PIeas fl'om the CompIaint COllrt. The jus-
tices of the Common Pleas are expressly prohibited fl'om
sitting in this court. There is no limitation of time fOl'
bl'inging appeals fmm the Common Law Comt to the
Court of Error. The Chief ,Justice considers the regll-
lated amount for which "appeals may be bl'ought, both
fl'om the Common PIeas to the Comt of Error, amI from
thence to the King in Council, as much too high,"-2
Rep.41.




142 DOMINICA.


Court of Grand Sessions.
The judges of this court are, the lieutenant-govel'l1ol',


(not being commander-in-chief), the members of council,
the speaker, and all the justices of the peace, who are
members of the House of Assembly. The chief justice
however presides in this cou1't, and the othe1' judges vel'y
seldom interfel'e.


The court assembles twice annually. Any three jus-
tices of the comt (being members of council), may at any
time take bail, as is done by the Court of King's Bench
in England in term time, 01' by the justices thereof in
vacation.


During the absence at any time of the chief justice,
the bench f1'equently refers any legal point either arising
01' brought before them, to the attorney-generaI.-2 Rep.
W.I.C.42.


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


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




( 143


MONTSERRA'r.
-


Montserml is ane of the Caribbee Islands in the West
Indies.


It is about three leagues in length, anc1 as many in
breac1th, and is supposec1 to contain about 30,000 acres of
land, about two thirds of which are very mountainous 01'
very barren. (7) Jt bears the cedar, the eypress, the iron-
tree, and other woods, anc1 has the same general charaeter
of soil that is observable in the other Caribbee Islands.


HISTORY AND CONSTITUTION.


1VI0ntserrat was discovered at the same time with Sto
Christopher's by Columbus, in consequenee of a supposed
resembJance between it anc1 a mountain in Spain that was
so denominated, from whom it reeeived its name. The
Spaniards, however, mude no settlement on the island.
Like Nevis, it was first planted by a small colony from
Sto Christopher's. This was detached in 163Z from the
adventurers under Warne)·. (8)


The Couneil consists of six members, and the Assembly
of eight, two from eaeh of the four districts into which
the il:lland is divided. (9) The island is undel' the govern-
ment of the Governor of Antigua, und the duties of
governOl" are genel'ally performed by the president of the
counciI. (1)


COURTS.


The several courts in the island are a Court of Chan-
cel'y established by the act marked No. 185 of their
printec1laws, amended by the aet marked No. 2ZZ; (2)
a Court of King's Bench amI Common PIeas i a
Comt of Error, established by the act mal'ked 89; a
Court of Vice-Admiralty, a Court of CompIaints for the
recovery of small debta, and a Court Merchant fol' tl'an-
sient traders, and fol' criminal mattel'S thel'e was a Court
of Gl'and Sessions. (3) The President of the CouDcil, in
the absence of the Govel'l1ol', of coul'se presides in the
COUl't of Chaneery. The chief justice is not a lawyer,
but a l'esident gentleman of fOl'tune. The attorney-


(7) 1 Edw.497.
(8) 1 Edwards, 496. As lo Wor-


ner, sce title Sto Christopher.
(9~ 1 Edw. 498.


(1) S Rep. W. 1. C. 34.
(2) Id. 33, 34, 35.
(3) Id. ib.




144 MONTSERRAT.
general is also a prívate gentleman. They aet without
salary 01' other advantages derived from their situation,
and they an reported theír opinions to the eommissioners
in favour of a ehange in the mode of administel'ing justiee
in the isIand. (4)


COLLECTION OF LA WS.


The laws of the island are eontained in one printed
and two manuseript volumes in folio. The manuseript
aets are very numerous. (5)


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


That act, which is intituled "An Act declaring the
former grant of tbe duty of four and a balf per cent. lost
and null within this island, &c," recites, tbat during tbe
late war between Charles n., tbe French King, and tbe
N etherIands, His Majesty lost several of his islands in the
West Indies, being subdued by the French, assisted by
the Indians, "and amongst others, this island also beillg
lostas aforesaid, thereby all the constitutions of govern-
ment lands, and grants fol' lands, were also destroyed,
togethel' with the grant for duty of four and a haIf per
cent., which was fonnerly settled in this place." (6) The
act pl'Oeeeds thus, "that the said former custom, import,
01' duty of foUt' and a half pel' cent. is to a1l intents and
plll'poses become void and null, and also any act and thing
concerning the same by reason of the conquest aforesaid.
And the same is hereby declared null and void accol'd-
ingly."


Then follows in the same year an aet, intituled " An
Act for new granting and eonfirming the duty 01' custom
of four and a half per cent." After l'eeiting that, "by
reason of late eonquests obtained by the }'l'ench King on
an the inhabitants of this His Majesty's island, an man-
nel' of civil governments, the several constitutions, grants,


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


isting in tbe island, tha! the old gran!
\Vas wilfully deslroyed by ¡he se,'-
van!s of the British erow]), anrl tha¡
!he loss of i! al the conques! of lhe
¡sland by the FrcHeh \Vas a mere pre-
tence; the ground of the alleged
fraud bcing tIla! the old gran! limited


¡hc application of the fOllr and a half
per cent. reVelllles to the purposes of
the local governrncnt. Thc 'Ves!
India Commissiollcrs (3 Rcp. 31)
state alld discredi! this picce of tra-
ditionary history. The ministers of
Charles Ir. haweve!' obtained a gran!
wbicb was accornpanied witb no sueh
l'estl'Íction.




MONTSERRAT. H5
and particular properties of all his said Majesty's subjects
were destroyed and lost within this his said island," it
enacts " that from and after the date thereof, a new im-
post 01' eustom of four and a half per cent. shall be paid
out of an the commodities of the growth of this island,
whieh shall be exported out of this island by every such
transporter, unto the use of Bis Majesty King Charles,
&c., his heirs and suceessors for ever. And the same is
and shall be hereby confirmed on Bis Majesty, his heirs
and successors, in as full and ample manner as ever the
same was heretofore paid, granted, and confirmed in
Barbados, 01' any other of his said Majesty's islands,
&c."


By a subsequent act in tbe same year, it is stated
that tbe island having been "fulIy subdued notwithstand-
ing all resistance possible was made by the inhabitants,"
aIl proprietors of lands are decIared to have lost the same
to his Majesty by reason of the French conquest, and
also by reason of the same island having been afterwards
re-settIed and restored by several ships and forces belong-
ing to his saicLMajesty King Charles the Second, &c."


And tben foIlows another act, also in the same year,
enaeting " that an and every of tbe late proprietors of
land in tbis island are hereby re-invested in all and singu-
lar their plantations, lands, immunities and appurtenances
which lately tbey enjoyed, and the same to hold, occupy,
enjoy, and possess, to him and tbem, his and their heirs,
executors, administrators and assigns for ever, and that
they shaIl and may, when reasonably desired, have the
same so confirmed by patent under the great seal of Bar-
bados and the rest of the Caribbee Islands for that
purpose by his said Majesty appointed," with the excep-
tion of certain lands in the act particularly specified.


In the same year passed an aet "for the speedy erect-
ing and building of a place for the Court of Judicature,
now 01' hereafter to be erected in this island," &c.


In 1672 (7) Montserrat, Antigua, Sto Christopher's, and
Nevis, (8) (to which the Virgin Islands were afterwards
annexed,) (9) were consolidated under one general go-


(7) 1 Edw. 453. In ¡he same
year Lord 'Villollghby "as appuint.
erl go\'erllor of Barbadus. Sto Lucia,
Sto Vinccnt, nlld Don'¡nica. Ibid.
411.


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


(9) Unt!p,' a commissiun granled
b.~ Charles 2 to Si,. W. Stapletoll.
I~dw. ubio "'p, ,')01.


L




]46 MONTSERRAT.
vernment, called "The Leeward Caribbee IsIand Go-
vernment," and the governor whel'eof was styIed " Cap-
tain-GeneraI of the Leeward Caribbee IsIands."


The general governmc:mt eonsisted, besides the governor-
general,.of a general council and general assembIy, who
passed Iaws on subjects of common anduniversaI concern
relating to the different islands of which it was com-
posed. (1)


This island was invaded by a French force in 1712, (2)
and taken, but was restored to Great Britain under the
treaty of Utrecht, concluded on or about 31st March,
1713.


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


On the28thDecember, 1782, passed an act (No. 217)
reciting that in consequence of the capture of that isIand
by His Majesty's arms, doubts had arisen as to the validity
of the several suits and process then depending in the
Courts of Chancery, Error, King's Bench, and Common
PIeas of the said island, and particulady whether the
said suits and process can be carriedon in the same man-
ner aS'if this island had still continued under the subjec-
tion oí the Cl'own of Gl'eat Britain. And the said act
pro vides that all suits, &c. depending in the said courts
at the time of thecapture by His Majesty's arms on the
22d February last, shall be ·l'evived and made valid, and
restored to the same plight and condition as at the time of
the capture by His Majesty. " And the several plaintifts
at law and in equity, in such suits are hereby fulIy autho-
rized' and empowered to pl'oceed tofinaI judgments and
deerees thereupon, . 01' otherwise, according tothe nature
of their ,respective suits, and likewise to an subsequent
pro ces s, in the same manner as if the said island had not
been captured, but still continued under the subjection of
His BritannicMajesty aforesaid," &c. .


This island was finally ceded to Great Britain under
the general pacificatión which took place in 17&'3. (3) An
act similar to the foregoing was then passed, (dated 27th
April, 1784, No. 225,) which, after l'eciting that doubts
had arisen as to the validity of suits depending at the time


(1) St'e ante Antigua. See printed
edito of Antigua nets, vol. 1, p. 1 lo
23.


(2) 1 B. Edw. ,197.
(:3) Ibid.




~IONTSERRAT. 147
of tha restitution of the isIana by tbe French King to His
Majesty, declared sueh suits to be valid, &c.


On the said 27th April, 1784, passed an aet (No. 226),
intituIed "An Act for confirming and establishing severaI
Acts passed by the Legislature of this IsIand during the
government thereof under the French King," which re-
cites, "that doubts had arisen as to the force ana vaIidity
of the severaI acts passed by the IegisIature of the said
isIand during tbe government thereof under the Freneh
King, and that it was highly proper for the ease and
benefit of his Majesty's subjects in the said island that
several aets, from which his Majesty's subjeets had de-
rived great advantage, passed by the Iegislature of the
said island during the government thereof by the French
King, should be confirmed and restored to the same state,
eondition, force and effeet in which tbey were at the time
of the restitution of this island to His Majesty." And the
act proceeds to provide "that aH ana every the foHowing
aets passed by the legisIature of this island during the
government thercof under the Freneh King, that is to
say, an aet made ana passed the 19th day of September.
1783, intituled 'An Aet to alter, amend and explain cer-
tain . parts of an act intituled An Act for establishing
a Comt of King's Bench and Common Pleas and a Court
of Error, and for the more speedy execution of justice,
and for collecting certain fines and penalties on the offi-
cers taking other fees than allowed in a docket settled by
his excellency by advice of his' eouneil,' and one other
aet made and passed on the same day, intituled 'An Act
to alter, amend and expIain an act intituled An Act fol'
constituting a Court of Chaneery to be heId in and fol'
this island,' the force of whieh, in eonsequenee of the late
restitution of the said isIand to your Majesty may have
abated or been rendered of no effect, shall be and are
hereby revived, confirmed and made valid to all intents,
constructions and purposes wbatsoever," &c.


One of the acts of assembly of this isIand is too curi-
ous to be passed over without notice. It recites, in an
Eastern style of metaphor, tbat opprobrious language,
" if not prevented, may oversbadow the good government
and administration of justiee in this isIand witb the staple
clouds of reproach and infamy," and it then proceeds to
prohibít such language general1y, ami the followíng nick-


L B




148 MONTSERRAT.
names in particular :-" Tory-English-or Irish-or
Scotch Dog," &c.(4)


COURTS.


The commissioners state that it is not in their power to
enumerate the courts of judicature in this island, no an-
swers having been received to the questions addressed by
them to the chief justice and the resident crown lawyer.
-3 Rep. W. I. C. 33.


Court of Clzancery.
A Court of Chancery appears to have been constituted


by No. 185 ofthe Laws of Montserrat, amI amended by
No. 222.


By the former act the Governor 01' president, and five
members of the council, compose a court.


By No. 222, in case of the Governor or president being
a party to a suit, the next senior member of council is
appointed to preside; and for want of five disinterested
persons to act as judges, three or four members of council
are allowed (with the commander-in-chief) to form a
court.


Court of King's Bcnclz and Common PIcas.
The act of the island, No. 89, creates a Court of


King's Bench and Common PIeas, with an establishment
of one chief justice and four assistant judges, "to try
causes according to the laws and usage of Great Britain,
and the Iaws and usage ofthe island."-3 Rep. W. I. C. 34.


Ol/ter Courts.
A Court Merchant for transient traders was established


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


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


(4) ;, Rel" W. I. C. 31.




MONTSERRAT. 149


Court of Grand Sessions.
This court was established under an act of the island,


No. 86, which act however provides only for one gaol de-
livery in the year.-2 Rep. W. l. C.35.


By the act constituting the Court of Sessions, all magis-
trates are required to attend.


Justices of the Peace.
Justices exercise a summary jurisdiction in civil mat-


ters in this island, in all cases where the debt does not
exceed cflO; appeals to a higher tribunal are allowed
where the sum exceeds .e3 currency. '


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


A prisoner when acquitted is instantly set at large-the
fee is charged to the public; the expense of prosecutions
is borne by the country; but persons found guilty of
assaults pay ror the prosecution.


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


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


Information of sud den or violent deaths is received
from the owner, attorney or manager; never in this island
from the slaves.-3 Rep. W. I. C. 38.




NEVIS.


-


Nevis is one of the Caribbee Islands in the West
ludies.


It is nothing more than a single mountain, the circum-
ference of the base of which does uot exceed eight
English leagues. .


It is divided into five parishes. Its seat of government
is Charles Town, and thel'eare two other shipping places
called Indian-CastIe and New-Castle.


The number of white inhabitants at the period of Mr.
Edward's work is stated at about 600, and the negroes
are said to be about 10,000. (1)


HISTORY AND CONSTITUTION.


The English first established themselves in . this island
in the year 16528, under the protection andencouragement
of Sir Thomas Warner. (52)


It is said that in 1640 it PQssessed 4;000 whites. (3)
This island possessed a legislative council and assem-


bly at least as early as ]664, whieh is the date ofthe first
aet in its printed eolIeetion of laws.


That aet, whieh is intituled "An Act for settling an
impost on the commodities of the growth of this island,"
recites that Chao 1, did by Ietters-patent uuder the great
seal of England, grant and eonvey unto James, EarI of
Carlisle, and his heirs for ever, the property of that Island
of N cvis; and that Chao Z, had by purchase invested him-
seIf in all the rights of the said carl, (4) and in all other
rights which any person might c1aim from that patentor any
other, and thereby more immediately had taken that isIand
and the rest of the Caribbee Islands into his royal protec-


(1) 1 B. Edw. 468 to 470.
(2) 1 B. Edwards, 470. See titIe


.. Sto Christopher," for an aCcollnt of
Sir T. Warner.


The senior Killg'S Counsd at
Ncvi:", e:,.amined undc!' 1\1r. Dwm'·


ris's commission, speaks of 1625 as
the date of the "first settlement of
the coIony."-2d Rep. W. I. C. 62.


(3) 1 B. Edwards, 471.
(,~) See Ihis transaetion expIained


al litIc " Barbados."




NEVIS. 151
tion, and had by lettel's-patent under the great seal of
England, bearing date l~th June, in the fifteenth year of
his reign, appointed Francis, Lord Willoughby ofParham,
Captain-General and Chief Governor of Barbados and
the rest of the Caribbee Islands, (5) with full power and
authority to grant, confirm, and assure to the inhabitants of
the same and theil' heirs for ever, all lands, tenements,
and hereditaments under His Majesty's seal appointed
for Barbados and the rest of the Caribbee Islands, The
act then recites that by virtue of the said earl's patent
divers governors and agents had been sent over thither
with authority to convey in parcels the land within the
islands to such persons as they should think fit, which
had been performed ; but many hall lost their grants, &c.;
and that an acknowledgment of twenty pounds of toba ceo
per paJe, and other taxes had been raised by the island to
the Barl of Carlisle, whieh had been held very heavy.
The act then proceeds to provide that all the now rightful
possessors of lands might repair to his exceUency for a
full confirmation of their estates and tenures under the
public seal of the island, and also that the payments of
the twenty pounas of tobaeeo per pole, and all other
duties due to His Majesty in right of the ear~ shall
ceas e ; and that die inhabitants shaU hold their plantations
to them and their heirs for ever in free and common
socage at the rent of one earof Indian corno And in con-
sideration of such extinguishment of duties and eonfirma-
tion of lands, the act lays on an impost payable to the
erown for ever of 4~ per eent. on all the exported produce
of the island. (6) .


In 1672 the Leeward Caribbee Island Government was
formed in the manner already related. (7) 11. roay be
doubted whether the general legislative assembly of the
Leeward Caribbee Islands had any existenee till the eom-
mission of Wm.3, in 1689. Its' printed aets begin in
1600, and the aet whieh declares the power ofthe general
assembJyover these islands is dated in 1705, (see ante, 131.)


By commission, bearing date 26th October, 1689, in the


(5) "Or of the Caribbee Lee-
ward I.lands in America," as it is
expresscd in tbe Nevis Act, No. 2.


(6) This impos!, as elsewhere el[-


plailled, is payable at Barbados and
alJ lhe Leeward Caribbee IsJands.
See Ibe different litles.


(7) See unte, Antigua.




152 NEVIS.
first year of his reign, King William 3. authorized " the
Governors, Couneils, and Assemblies of theil' Majesty's
Leeward Caribbee Islands in Ameriea, jointly. amI
severalIy to make laws for the publie peaee, welfare, and
good government of the said islands, which said Iaws were
to be, as conveniently might be, agreeable to the laws and
statutes of tbis kingdom, and to be transmitted to His
Majesty for his royal allowanee 01' disapprobation of


. them." (8)
An act of 1710 (No. 68 of printed Iaws of N evis)


mentions courts of justice as having been for some time
heId in the isIand; and in 1711 an act (No. 70) passed
" for establishillg the Courts of Queen's Beneh and Com-
mon Pleas, and settling due methods fo1' the administra-
tion of Justice in this Island." And in May, 1732, an aet
(No. 94) passed for the like purpose. This, not having
expressly repealed the former, they are both contained in
the printed eolIeetion. (9)


In 1782 Nevis with St. Christopher surrendered to
the arms of France; (1) but was restored to Great Bl'itain
by the peace of 1783.


The " Leeward Island Government" no longer exists,
its component parts having been for some years past se-
pa1'ated. The commission under which, till the last year,
Nevis was governed, comprised also St. Christopber, An-
guilla and the Virgin IsIands, but did not embrace An-
tigua 01' Montserrat. They are now all cOllsolidated illto
one government, with a lieutenant-governor to each dif-
ferent island (see ante, 123.)


This newly-constituted general government ·has not a
general couneil 01' assembly; but each island enjoys (as
before) a coullcil and assembly ofits own.


Mr. Edwards states that in the absenee of the governor-
general thc government of this island is administered by
the President and Councíl, and that this board is com-
posed of the president and six other members, and that the
House of Assembly consists offifteen representatives, three
fOl' each parish. (2)


The chief justicc and assistant judges are saíd to be


(8) This commissioIl is rccited in
an Order in Council transcribeel in
tlié prillted aets of Montserrat. p. 13.


(9) With respect (o the COlll'l uf
Chancery it derives it" ,¡ulhority en·
tireJy froJO th~ Ki:I.Q;·s CO!lllUhsiul:


anu instructions to the governor, there
ueing no local law all tl;e 5ubject.-2'¡
Uep. W. r. c. 67.


(1) 1 n. Ed",ards, 168.
(~) Iuiel. 470.




NEVIS. 153
appointed by the govcrnor by patent, to continue· during
pleasurc. They have no salaries, and (except tbe chief
justice, whose fees are settled by law,) scarcely any fees. (3)


There is no attorney 01' solicitor general in this island.
Those officers reside at Sto Christopher. The chief law
officer of the crown is called the senior king's counsel.
This gentleman, when examined under the late commis-
sion for inquiring into the administration of justice in the
West Indies, was asked whether it was requisite that pel'-
sons acting as counsel in these courts should have been
called to the bar in England, and if not, who were ad-
mitted to practise and in what manner? his answer was-
that "persons who have been called to the bar in Eng-
land, as a matter of right, as of course, and persons whose
competency is made apparent by certificate, 01' upon
motion in open court, by the usage of the COUl'ts, are ad-
mitted to practise as counsel and solicitors, 01' attol'llies,
and as advocates and pl'octors in aH the courts respectively,
and such admission is considel'ed to confel' the same pri-
vileges with the same restrictions and controul of the
eourts as does an admission in the mothel' country tltere ,.
but I have becn able to trace no rule of the court as to
these matters. In the Court of King's Bench and Com-
mon Pleas in this island however counsel are not privi-
leged to practise as attornies, and do not, there being only
four attornies allowed by the Court Act. But the present
four attornies have been admitted barristers also; one by
speciaJ rule of Court." "There is no rule of court as to
the qualification of persons to practise as attornies; but
the court is satisfied of thcir ability 01' competency before
admission, which is obtained in like manner as in the case
of bal'l'istel's. They are not limited as to clerks."(4)


COLLECTION OF LAWS.


There is an edition of the Acts of the Island from 1664
to 1740(5) inclusive, with the Acts of the Caribbee Lce-
ward Islands annexed, printed by authority of the lord s
of the committee of the privy council for trade and plan-
tations. This is scarce.


There is another from 1664 up to 1774, printed by tbe


(3) 2 Rcp. W. 1. C. 55 and 3
Rep.53.


(4) ed Iteport, W. 1. C. 55.
(5) This should be 1739. 11 was


prinled in London by Ihe King',
printer in 1740.




1M NEVIS.
authority of the legislatllre, and rnade evidenee by an aet
for that purpose, and this is also scarce.


There is a third from 1664 to the middle onSIS, printed
by authority of the Council and Assembly; but this is in-
accurate, the press not having been properly revised or
corrected by regular authority. The acts from May,
1818 were, in 1825, in manuscript only.(6) .


GENERAL LA W OF THE COLONY. (7)
By an aet of the Leeward Islands of 7 June, 1705, in-


tituled "An Act to settle General Councils and General
Assemblies for the Caribbee Islands in America, and to
secure to each particular Island their own peculiar Laws
and legal Customs," it is provided that all the laws and
legal customs now in force in each and every of the Ca-
ribbee islands and respecting only the cireumstances of
the same, be and remain in their full force and virtue.(8)


By another act of the Leeward Islands of 20 June,
1705, intituled " An Act for preventing tedious and eharge-
able Lawsuits, and for declaring the rights of particular
tenants," it is declared " that the common law of England
as far as it stand s unaltered, &c.(9) is in force in each of
these Islands, and that a11 custorns, &c. contradictory
thereunto are illegal, nuU and void."


Upon the examinations under the late commission for
inquiring into the administration of justice in the West
Indies, the senior King's counsel of Nevis thus expressed
himself:-" The common law of England, unaltered by
any written law of the Leeward Islands or this Island, or
by sorne Acts of Parliament extending to the Colonies, is
eonsidered the certain rule whereby the rights and pro-
perties of the inhabitants are or ought to be determined;
and all customs, or pretended customs, 01' usages contra-
dictory thereunto are illegal, nuU and void. And a11 Acts
of Parliament of the mother country, antecedent to a cer-
tain period, and applicable to the colony, or whieh name
the colonies, or are expressed to extend to all His Ma-
jesty's dominions, and also Acts of Parliament regulating
the practice of the Court of King's Bench, or the Court


(6) 2 Rcp. W. l. C. 58.
(7) Sp.e the remarks in the first


chapter on the general topie how far
liJe colonies are subjeet to the law of


the mother country.
(8) See title " Antigua," where


tbe recitals of tbis act are givcn.
(9) See ante, Antigua.




NEVIS. 155
of Common PIeas, passed prior to the Court Act, anno,
1732, are considered as operative in this island. But that
certain period does not appear to have been settled by
any judicial decision that I have met with on record here.
By the 25th clause of the Court Act, whereby the Statute
of Frauds of 29 Cal'. 2, is extended to this Island, it ap-
pears that Acts of Parliament of that date, 29 Cal'. 2, were
considered inoperative here. But at how much earlier a
date I do not find, possibly soon after the final settlement
of the colony in 1625, 01' the early part of the seventeenth
century."-2 Rep. W. l. C. 62.


In the case of Campbell v. Hall, Howell's State Trials,
vol. 20, p. 289, Lord Mansfield is reported to have said,
" It is absurd that in the colonies they should carry all
the laws uf England with them. They carry such only
as are applicabIe to their situation. I remember it has
been determined in the council. There was a question
whether the statute of Charitable Uses operated on the
Island of Nevis. It was detel'mined it did not; and no
laws but such as were applicabIe to theil' condition unIess
expresslyenacted."


Ofthe Laws ofNevis the principal are these:-
No. 33, cl. 1, enacts that the coronel' shall execute his


office pursuant and according to the laws and statutes of
England.


No. 100. The Court Act of this isIand, intituIed An
Act for establishing the Courts of King's Bench arid
Common PIeas, &c. &c. with such powers as the judges
of the two courts at Westminster respectively have 01' ex-
ercise, subject, nevertheless, to such jurisdiction, power,
&c. as the Court of King's Bench, at Westminster, hath
usually had over all other courts in his Majesty's domi-
nions.(l)


No. 135. An Act for holding a Court of Sessions once
every year.


Cl. 3. The justices of the Court of King's Bench and
Common Pleas are exempted f1'0111 sitting in this court,


(1) lt is said however that appeals
go froOl tbe Conrt of King's Beneh
and Cornrnon Pleas to the Coort of
Error, and thcnee to the King in
Council, notwithslanding the c1ause of
Ihis COllrt Act, which secms to re-


serve the pOlVer of appeal froOl the
Court of King's Bench and CornOlon
Pleas in the island lo the Coort of
King's Bench in England.-Z Rep.
W. I. C. 186.




156 NEVIS.
which is composed as it is vaguely said of" about thl'ee
justices of the peace."-3 Rep. W. l. C. 42.


COURTS.


The courts for the administration of Civil justice in this
island are :-the Court of Chancery, the Court of Ordi-
nary, the Court of Error, the eourt of King's Bench and
Common Pleas, and tbe Court ofVice-AdmiraItYi but the
Court of King's Bench and Common Pleas, and tbe
Court of Error only are established, by the laws of tbe
island.


The courts for the administration of criminal justice
are:-the Court of King's Bench and Common Pleas, the
Court of Error, (according to the classification of the
King's counsel,) the Court of Session, the Court of Jus-
tices of the Peace, the Slave Court, the Courts of Oyer
and Terminer and general Gaol Delivery, the Court of
Vice Admiralty, and the Commission Court for the trial
of pirates. The fil'st five are established by laws of the
¡sland; the succeeding three are derived mediately, (i. e.
through the eaptain general,) the last immediately from
the King.


Tke Court 01 Ckancery.
The Court of Chancery in this island derives its autho-


rity entirely from the King's authority and instructions to
the eaptain general, there being no local law whatsoever
upon the subject.


The captain ~eneral is sole chaneellor, and holds a
eourt pro re nata.


There is one master in chancery, appointed by the cap-
tain general, and he is examiner also. He does not give
any security.


Costs in this island are taxed by the Master, who is
governed by a docket established upwards of thirty years
ago.-3 Rep. W. 1. C. 45.


Court 01 King's Benck and Common Pleas.
In this court are blended tbe separate jurisdictions of


the Courts of King's Bench and Common PIcas in Eng-
land.


The comt derives its authority from the Court Act.
No. 100.-3 Rep. W. l. C. 46.




NEVIS. 157
The writ of lzabeas corpus is obtained in this island


both at common law and in favour of liberty, by the Act of
Charles 2d; though the legal extension of it to this island
is questionable, and its suspension disregarded.-3d Rep.
W. l. C. p. 47.


Courtlor the Recovery of Small Debts.
There is no Court of Complaints in this island, but by


the 3fld clause of the Court Act justices of the Court of
King's Bench and Common PIeas have " power to hear
and determine in court, without a jury, an manner of
actions and suits under the value of lOl. cun'ent money, or
lOOIb. of sugar;" and likewise "aH cases relating to ser-
vant's wages and debts due to artificers and labourers, not
exceeding 20001b. of sugar, 01' 15t. current money; and
in such cases the oaths of the plaintiff shall, if the Court
think fit, be sufficient evidence to prove the debt or de-
mand." At the time of passing this act in 1732, accounts
were very commonly kept and actions brought and judg-
ment given for so many pounds of sugar, eo nomine, which
may partly account for the making produce a legal tender
to the marshal at sales upon executions, and the practice
which has grown out ofit.-3 Rep. W. l. C. p. 48.


Court of Ordinary.
There is no Court of Ordinary in this island established


by]aw. The captain-general (of St. Christopher, ofwhich
Nevis is a dependency,) is sole Ordinary in his govern-
ment by virtue of the King's commission. He sits when
applied to as in the Court of Chancery, but deputes
generally the president of the council to grant letters of
administration, (but not toLdecide on a caveat,) probate of
wills, and marriage licenses.-3 Rep. W. l. C. 49.


Court 01 Vice-Admiralty.
The Court of Vice-Admiralty derives its ordinary au-


thority and jurisdiction from the commission, (as vice-ad-
miral,) and the instructions to the capta in-general; and
its powers are the same locally as those of the High Court
of Admiralty in England. The Court has also a concur-
rent jurisdiction with the Courts of Record by virtue of
certain acts of Pal'liament; and by special commission, (of
late disused,) it has cognizance of prize causes during war.




158 NEVIS.


Court 01 Error.
In this court the captain-genel'al, 01' othel' pel'son ad-


ministering the government, and four 01' more members of
the council, are the judges.-3 Rep. W. l. C. 49.


The " Criminal jurisdiction" of this island is vested in
several courts, viz. the King's Bench side of the Court of
King's Bench and Common PIeas, the Court of Sessions,
holden annually on the first Tuesday, Wednesday, 01'
Thursday in October, composed of three justices of the
peace at least, one whereof to be of the quorum, who,
according to the commission of the peace, are the members
of the council only; the Comt of Justices of the Peace,
consisting of one, two, 01' more justices, as occasion may
require, and as prescribed by the general commission of
the peace; and Courts of Oyer and Terminer and General
Gaol Delivery, depending upon commissions issued from
time to time, upon extraordinary.occasions, by the captain-
general. These courts' are all governed by the laws of
the mother country, not being affected in their proceed-
ings 01' practice by any local act whatsoever. Prosecu-
tions are frequently carried on at the instance of a private
prosecutor, who retains whom he pleases in the Court of
King's Bench and Common Pleas, and at the Court of
Sessions, but in aH the other courts, and in cases termed
"public prosecutions," that is, conducted at the public
expense, aml noticed by the superior authorities, the senior
King's counsel resident in the island prosecutes, unless the
Attorney-General 01' Solicitor-General, who reside at Sto
Christopher, are speciaHy called upon, which usually hap-
pens in cases of importance 01' magnitude.-3 Rep. W.
l. C. 50.


With the exception of the chancellor, the ordinary, the
members of the council, and the commissioners fol' the
trial of pirates, (at the Admiralty sessions,) who are all
appointed by the King, all the judges and justices of the
several courts are appointed by the captain-general by
patents under the great seal. Tpey have no salaries, and
(except the Chief Justice of the Court of King's Bench
and Common Pleas, whose fees are settled by law, and
the judge of Vice-Admiralty,) scarcely any fees. lt was
not known that justices had any jurisdiction in civil mat-
tcrs in this island.-S R:ep. ·W. l. C. 52.




( 159 )


STo CHRISTOPHER AND ANGUILLA.


-


Sto Clwistopher is one of the Cal'ibbee IsIands in the
West lndies. It lies in 17° 15' north lato and 63Q 17'
west longitude. It is about fourteen leagues in circuit,
and contains 43,726 acres ofIand. It is divided into nine
parishes, and contains foul' towns and hamlets, viz. Basse-
terre (the present capital, as it was previously that of the
French) containing about 800 houses, Sandy Point, Old
Road, and Deep Bay. (1) When Bryan Edwards wrote,
the number of white inhabitants was computed at 4000,
and taxes were levied on Q6,000 negroes, -and there were
about 300 blacks and mulattoes' of free condition. (Q)


Anguil/a is an Island sixty miles north west of Sto
Christopher.(3) It is now said to be a dependency of the
latter island, aml to send one member to its assembly.
But in the continuation of MI'. Edwards's book it was said
that "Anguilla has an assembly of its own, and even a
chief, who is always chosen by the islanders, though he is
confirmed in his office by the Governor of Antigua." (4)
It is in length more than nine; and in breadth less thao
three leagues. It was settled by the English in 1650.


HISTORY AND CONSTITUTION.


Sto Christopher's was discovered in November, 1493,
by Columbus himself, who gave it his own Christian
name. But it was neither planted nor possessed by
t4e Spaniards. It is the eldest of all the British Co-
loniesin. the West ludies, and, indeed, the common
mothel; both of the English and French settlements
in the Caribbee Islands. Mr. Thomas Wamer, with
fourteen other persons, sailed fl'om England and arrived
at Sto Christopher's in January, 16Q3, and by the month


(1) 1 B. Edw¡¡rds, 462 to 467.
(2) Ih. 467.


(3) Brooke's Gazetteer.
(-t) 4 B. Edwards, 217.




160 STo CHRISTOPHER'S.
of Septemher following had raised a goou crop of tobacco.
The first actual establishment in Barbados did not take
place till the btter end of 1624. (5)


The English found the Charaibes in possession, and
with them they continued to live for sorne time on ami ca-
ble terms.


In May, 1624, a ship of James Hay, Earl of Carlislc,
arrived in the colony, having been sent out there at tbc
solicitation of W arner, with necessanes for the new
settlel's,


In 1625 a party of French ad venturel'S landed in the
island and wel'e well l'eceived by the English, and shortly
afterwards the settlel's of both nations fell upon the Cba-
raibes, destl'oyed great numbel's of them, and drove the
rest from the island. (6)


In the first year of Chao 1, (1625,) that monarch, by
lctters-patent under the Great Seal, granted to James
Hay, Earl of Carlisle, and his heirs for ever, the wholc of
the Caribbee Islands. (7)


In 1626 Warner was knighted, and through the interest
of Lord Carlisle sent out fl'om England as Governor of
Sto Christophel"s; and in 1627 a treaty of partition took
place between the English and French commanders, by
which they agreed to divide the island in nearlyequaI
parts between their respective followers. (8)


In 1629, a Spanish force invaded St. Christopher's,
expelled both French and English, laid waste the set-
tlements, and reduced the country to a deserto The two
latter nations, howcver, were afterwards restored to their
possessions in this island. (9)


In the reign of Cha. Q, that monarch purchased aH the
rights 01' the Earl of Carlisle, and took the whole of the
islands granted to the earl more immediately under his
royal protection. And by letters-patent un del' the great
seal, bearing date 12th June, in the fifteenth year of
his reign, (1663,) appointed Francis Lord Willoughby, of
Parham, Captuin-General and Chief Governor of Barba-
dos and thc rest of the Caribbee Islands. (1)


(5) 1 B. Edwards, 454, 455.
(6) Ibid.4.';7.
(7) Scc Ncvis Act, No. 1 of


printcd collectioll. And see title
Harbados, "befe tbis maUer is more
fully stated.


(8) 1 n. Edwards, 458,459.
(9) Ibid. 182, 183,4.59.
(1) Nevis Act, No.l, printed col-


lection, and titles " Barbados," whcrc
lbi, maltcr is more fully stated.




sTo CHRISTOPHER'S. 161
In 1666 the English plantcrs were driven out by the


Freneh, but obtained restit.ution by the treaty of Breda in
1667. (~)


In 1689 the English wcre again expelled by their
Freneh neighbours, who remained about cight months in
exclusive possession, but were themselves in tU1'11 reuuced
by the English under the eommand of General Codring-
ton. (3)


Sto Christopher's enjoyed a legislative assembly at least
as early as 31st August, 1694., for by an act of the Lee-
ward IsIands of that date, (4) it incidentally appears that
eaeh of the islands of whieh the general government was
composed possessed at that time a Couneil and AssembIy.
This appears to have been secul'ed to them by the eommis-
sion granted by 'Vm. 3, and dated 20th Octobel', 1689,
by which the Governol's, Councils, and Assemblies of the
Leeward Caribbee Islands were authorized "jointly and
sevel'ally to make laws for the public peace, welfare, and
good government of the said islands." Before the year
1704 the English appear to have conquered that part of
Sto Christopher's, which had formerly been in possession
of the French, for in that year Mr. Attorney-General
Northey reported with regard to "that part of Sto Chris-
topher's lately gained by eonquest from the Freneh," that
"Her Majesty may, if she shall be so pleased, under her
great seaI of Englanrl, direct and command the duty of
4~ per cent. to be levied on goods exported from the eon-
quered part, Her Majesty by her prerogative being
enabIed to make laws that will bind pIaees obtained by
eonquest." (5)


In 1711 an aet was passed in St. Christopher's (No. 1
of printed eolleetion) Íntituled, "An Aet for the esta-
blishing of Courts and settling due methods for the admi-
nistration of justiee in this island. (6)


(2) Act of St. Christopher's, No.
38, el. 5, oí pl'inted collcetion, 1
Edwards, 460.


(3) Aet of Sto Christopher's, No.
38, el. 1, of printed eolleetioll, 1 Ed.
wards, 461.


( 4) Among lhe aets of the Leeward
I.Jauds anncxe¡J to Ibe printed aets
of St. ehristophe,'s.


(5) 1 Chal Op. Ht.


(6) "Tbis aet was repeaJed by
allother pa,sed in 1724, (No. 59.)
But scvl'ral objections arising to that
aet it was not confil'llled, bUlordered
to Jie by probationar.v. Therefore
both aets are primed." Note in
margin of Ihe pl'inted collection.


lt is the aet uf 1724, (No. 59,)
howevrr, which is cUllsideH.'>d in St.
Kit!'s as the existing Court Act. 2


M




162 STo CHRISTOPHER'~.
On 13tl.l Novcmbel' in the same yeal', an act passed


intituled, "An Act fol' preserving the Freedom of Elec-
tions, and appointing who sha11 be deemed Freeholders
and be capablc of electing or being elected Representa-
tives." (7)


By the peace of Utrecht, concluded on 01' about the
31st March, 1713, this island was ceded wholly to the
English, and the Fl'cnch possessions were aftel'wards pub-
licly solel fol' the benefit of the English government.
Sorne few of the French planters, however, who con-
sented to takc thc oaths, were naturalized and permitted
to retain their estates. (8)


In 17547 an act of Sto Christopher's (No. 68) passed, to
subjcct all goods, the gl'Owth of the late French part of
the island, to the payment of the 4k per cent. dnty, which
the act recites to have been laid on the Leeward Islands
generally, by " An Act of the General Council and Gene
ral Assembly of the Leeward Caribbee Islands in Ame-
rica, called 01' known by the names of Nevis, Sto Christo-
pher's, Antigua and Montserrat, made in 01' about the year
1663, and entitled an Act for settling an Impost on the
Commodities of the growth of the Leeward Caribbee
Islands."


In the same year (1727) an act of 8t. Christopher's
(No. 71) passed, intituled "An Act to enable the several
parts of this Island, forme)'ly bclonging to the French, to
choose and send Representatives to serve in the Assern-
blies of this Island; to declare ami ascertain the N umber
of Rcpresentatives fol' the whole Island, what number each
Parish shall elect, and the sevel'al qualifications of the
Electors and Candidates; to se cure the Freedom of Elec-
tions, and for repealing an Act of this Island, dated the
13th day of N ovember, 1711, intitulcd " An Act for pre-
serving the Freedorn of Elections and appointing who shall
be deerned Fl'eeholders, and be capable of electing 01'
being elected Representatives." .


In 1782 Sto Chl'istopher's was invaded and captured by


Rop. W. 1. C .. ~2, 58, 186. The
Conrt of Chancery in this island does
not derive ils authority under either
01' these acts, bul unly onder the
Go\'ernor's commission. Ibid. 52 to 66.


(7) l\1clltioned and repealed by
No. 71 of printed acts.


(8) See Act of Sto Christopher's,
No. 71, 1 Edwards, 461, 462.




STo CHRÍSTOPHER'S. 163
a French force; but it was restored to Grcat Britain
under the general pacification in 1783.(9)


Mr. Edwards states that "in Sto Christopher's the Coun-
cil should consist of ten members; but it is seldom that
more than seven are presento 'rhe House of Assembly is
composed of twenty-four repl'esentatives, of whom fifteen
make a quorum. 'rhe requisite qualification is a freehold
of forty acres of land, 01' a house wOl'th .i'4-O ayear. Of
the electors the qualification is a freehold of .i'1O ayear. (1)


'rhe appointment of the chief justice is genel'ally con-
sidcl'ed to belong to the government at home. 'rhe four
assistant judges are appointed by the Governor, and hold
commissions from him under the great seal of the go-
vernment. 'rhe chief justice and his assistants all hold
their commissions during pleasure. 'rhey have no salaries,
but receive certain fees. (2)


'rhere is an attorney-general in this island.
It is not required that persons acting as counsel in


the courts of this isJand should have been called to the
bar in England. By a law lately passed, it is required
that they should have kept twelve terms at least, in some
of the inns of eourt, with the exeeption of those persons -
\Vho \Vere attending the offices of barl'isters, with the view
of being called to the bar. (3) Persons admitted to the
bar are, by a law of this island, allowed to act also as so-
licitors and attornies.


COLLECTION OF LAWS.


'rhe Aets of this island from 1711 to 1799 have been
printed. (4) 'rhose from 1711 to 1740 were printed in
London by the King's printer, and by order of the Lords'
Commissioners of 'rrade and Plantations; and to that
volume are annexed the Act~ of the Caribbee Leeward
Islands, from 1690 to 1730.


'rhe Governor said he "could not supply thé eommis-
sioners with a copy of the laws; he had none for himself;
he was obliged to grope in the dark/' A eopy of the
printed laws to 1779 was afterwards with difficulty pro-


(9) 1 Edwards, 46'2.
(1) 1 B. Edwards, 466. And see


Ihe Election Act, No. 71, el. ii.
(2) 2d Report, W. I. C. 52.


(s) 'id Report, W. I. C. 55. The
nUl1lber of terms necessary is aftcr-
wards stated (p. :i6) lo be nine.


(4) 2d Report. 51l.
M~




164 STo CHRISTOPHER'S.
cu\'cd j but many of the laws of this isIand remain in ma-
Illlscript.-3d Report, W. 1. C. 58.


GENERAL LAW OF THE COLONY.(5)


By an act of the Leeward Islands of 7th June, ] 70.5,
intituled " An Act to settIe General Councils and General
A~semblies fo\' the Caribbee IsIands in America, and to
~ccure to each particular Island their own peculiar Laws
and legal Customs," it is provided that aH the Iaws and
legal customs now in force in each and every of the Ca-
ribbee Leewanl Islands, and respecting only the circum-
st:mces of the same, be and remain in their fuU force and
virtuc." (6) The general Assembly is, however, by the
fourth section of the same act, to have power to make acts
hinding on aH the Leeward Caribbee Islands. By ano-
thcr act of the 20th June of tbe same year the common
law is declared to be in force in the Leeward Caribbee
Islands, (se e ante, Antigua.)


By the Court Act (N o. 1), passed in 1711, it is enacted,
that in this island shaH be held a court, &c., and that the
justices shall determine causes with full power and juris-
diction " according to the laws and customs of England,
and according to the laws and customs of this ¡sland, &c.
And the Court Act (No. 59), passed in 1724, appoints a
Court of King's Bench and Common PIeas, the justices
whereof are authorized " to hear, try and determine
in tbe said court, according to thc laws and usages of the
realm of Great Britain, and the laws and usage of the said
island," &c.


Up(\n the examination under the late commission fol'
inquiring into the administration of jllstice in the "Yest
Imlies the attorney general of Sto Christopher says, " We
consider the law of England operative here, in cases ap-
plicable to OUI' circumstances, except where it may be
ll10dified 01' altered by the acts of the colonial legislature.
\Ye also consider Acts of Parliament, passed preyious to
the cession of the island to Qlleen Anne by the Treaty of
Gtl'echt, operative here, in aU cases in which they are ap-
plicable." (7)


(5) See Ihe reruarks in Ihe lirsl (6) See tille " A:1tigua," where
ch""I!'r,on Ihe general topie how far the recitals of this and the nexl ael
Ihe colonics are suhjeel to (he law of are given.
1"" llIotber country. (7) 2d Report, W. 1. C. 61.




STo CHRISTOPHER'S. 1G5
No. 280. An Act for establishing a Court of Sessio!l~


of the Peace, to be heId in and for this Island.-3d Report,
p.61.


14th June, 1820. An Act for amending the Act for
establishing a Court of Sessions of the Peace, to be held
in and for this Island.


26th June, 185t0. An Act to alter so much of tIJe
Court Act as relates to the admission of Barristers.


Cl. 3. Any person desirous of being admitted, shall
produce a certificate, or proof on oath, of his admission
to the bar at Westminster, or that he has rcgularly kept
terms at one of the Inns of Court in London for the space
of tluee years. This regulation not to affect those, being
whites, who are now in offices in Sto Christopher.-~kl
Rep. W. l. C. p. 63.


COURTS OF JUSTICE.


The Courts cstablishcd in this island for the adminis-
tration of civil justice are, the Court of Chanccry, Comt
of King's Bench and Common Pleas, Court of Vice-
Admiralty, Court of Ordinary, and Court of Error, also
an occasional Court Merchant.


The courts established for the administration of crimi-
nal justice are, the criminal side of the Court of King's
Bench and Common Pleas, the Court of Quarter Ses-
sions, and the Court of Special Sessions. Commissions of
Oyer and Terminer also issue under the great seal.


Court of Cltancery.
The Govcrnor in this island is sole Chancellor, "as


holding the great seal of the colony," said the Attorney-
General. The Chanccllor excrcises the same authority as
the Chancellor does in the High Court of Chancery in
England, except in matters of bankruptcy. The court is
said to be guided by the laws, principIes, and decisions
which govern the Courts of Equity in England.-3d
Rep. W. l. C. p. 64.


An appeal lies froln an interlocutory order as welL as
from final de crees. But the appeal has no effect in stay-
ing the proceedings of the court here, if security be given
for restitution in the event of the success of the appellant.
-3d Rcp. 65.




166 STo CHRISTOPHER's.


Court Of King's Bench and COmmOti Pleas.
Tbis court derives its authority from an Act of the


island, No. 59, ami comprebends in general aH such cri-
minal and civil matters as are the subject of the jurisdic-
tion of the Court of King's Bench and Common Pleas in
England.


Real actions are never brought in this comt, except
dower, unde nihillwbet; ejectments are frequent. Slaves
are recovered by action of detinue.


The owner of fifteen acres of land, 01' of ten slaves, 01'
of a house in any of the towns of the island, of the value
of i:1O current money by the year, is exempted from ar-
resto


The writ of habeas corpus is obtainable in this isIand.
Vnder the statute it is granted by thc judges; amI the
Attorney-General thinks correctly.-3d Rep. W. 1. C.
p.66.


Actions entered in the Court of King's Bench and
Common PIeas for sums under i:l0 are denominated'com-
plaints. Such actions are táed by the justices of the
Court of Kings Bench and Common Pleas without a jmy,
at the monthly sittings of that court.


Court of Ordinary.
This court is held under the authority of the Governor's


commission; the Goverllor, 01' in his absence from the go-
vernment, the temporary commandel'-in-chief, being sole
judge.


Wills l'especting real and personal property are proved
here, when the testator dies and the will is in tite colony.
If a testator die in England and his wiII is proved there,
an exemplification 01' probate is recorded in, the office of
the registrar in ordinary.-3d Rep. W. I. C. p. 68.


Court of Vice-Admiralty.
The judge of this comt (the chief justice) derives his


authority by commission undel' the seal of the High Court
of Admiralty in England, with power to determine those
civil mari time cases over which the Instance Comt exer-
cises jurisdiction.


Proceedings for the l'ecovery of seamen's wages are in-




STo CHRISTOPIlER'S. 167
stituted, but not frequently, as t11e expense would be too
great for the subject-matter.


By statute 46 Geo. 3, C. 54·, pil'acy and other oftences,
committed in places where the admiral has jurisdiction,
are directed to be tried in the colonies according to the
Iaws of England, under commissions to issue as therein
mentioned. "No such commission," said the Attorney-
General, "has been sent to this island, and there is no
jurisdiction for the trial of pirates in this island."


Court of Error.
It is éonsidered in this island that writs of error may be


brought from the court of common law to the Governor in
Council for any sum, notwithstanding His Majesty's in-
structions have fixed the amount at .t300; the Court Act,
in cIause 35, speaking gene rally of " any judgment given
by thc Court of King's Bench and Common PIeas for any
sum, matter, cause 01' thing," without referencc to the
instructions, whereas in the 38th clause respecting appeals
to the King in Council, thc amount in that case limited by
the instructions is adverted to.


Escheats.
There is no Escheat Court 01' escheator in this island;


there is a person holding a commission as Casual Receiver,
whose duty i8 considered to be to take the direction of
property falling to the Crown by escheat, 01' for default of
kindred, and to dispose of it for the advantage of t11e
Crown.- 3d Rep. p. 69.


Criminal Prosecutions.
Criminal prosecutions of every description are en ter-


tained in this island by tbe Comt of King's Bench and
Common Pleas. Offenders are generally prosecuted by
the Attol'ney-General at the suit of the Cl'own. A pro-
secution is commonly instituted by laying a bill before the
grandjury; sometimes, but very rarely, by criminal inform-
ation. The indictments are genel'alIy drawn by the
Attorney-General. The fee is paid by the publico


The grand jury, if desirous of advice, apply to the
court, who generally refer to the attorney 01' solicitor
general, if the judges have any difficulty as to the point
inquircd of.-3d Rep. W. l. C. 70.




168 STo CHRISTOPHER'S.


Quarfer Sessions.
In thi8 court the senior justice of the pea ce acts as


chairman, when there is no member of Council presento
The matters usualIy occupying the court are inaictments
for breaches of the peace, nuisances, non-repair of roads,
&c., and the election of waywardens and constables.
Counsel practise in this court.


The Attorney-General has the indictment prepared,
and usually conducts the prosecution, but it may be put
into the hanas of other counsel.


The expenses of prosecutions in thi8 court are gene-
rally borne by the publico


A record ofthe proceedings is kept by the Colonial Se-
cl'etary, who in this coul't acts as clel'k of the peace, and
takes the costs.-3d Rcp. W. 1. C. p. 70.


Judges und Justices.
The judges in Sto Christopher's are selected as in the


other islands, from the first class of the community. It is
uot necessary that any of them should be barristers, 01'
ilhould have gone through a course of previous legal
study.


Justices of the peace have no jurisdiction concerning
disputes as to seamen's wages. (8) Justices of the peace
of this island have not been in the habit ofvisiting the
jail j the senior magistrate is not clear as to theil' right to
do SOj the marshal being a public officer appointed by the
crown, is perhaps under the controul of the Court of
King's Bench only.-3d Rep. 76.


Corone.,.
There are four coroners in this island, appointed and


removable by the Governor 01' his locum tenens. The
coroner is allowed J.!5, current money of the island for
every inquest he hold:;,. The coronel' is guided in his
duty by the rules which govern coroners in England.-
3d Rep. W. l. C. p. 77.


(8) These di'llUtes will now be tried in the Vice-Admiralty Courts, sel<
ante, 79.




169


VIRGIN ISLANDS.


-


HISTORY AND CONSTITUTION.


THESE islands were not peopled by the English till about
] 666. They were separated into two divisions.


In the first division of those pos ses sed by the English,
Tortola is the principal, to which division also belong
Jost Van Dykes and Little Van Dykes, and Guana Isle,
with Beef and Thatch Islands.


In the second division is Virgin Gorda, called also
Great Virgin and Spanish Town, having two good har-
bours. To this island belongs Anageda or the Drowned
Island, Nicker, Prickly Pear, and Mosquito Islands, the
Cammanoes, Scrub, and Dog Islands, the Fallen City
(two rocky islets close together, at a distance resembling
ruins,) the Round Rock, Ginger, Cooper's Salt IsJand,
Peter's lsland, and the Dead Chest. (1)


TortoJa is about eighteen miles long from east to west,
and seven in its greatest breadth. It was first settled by
a party of Dutch Buccaneers. These, in 1666, were
driven out by others, who took possession in the name of
the King of England. Protection being afforded them,
Tortola was soon afterwards annexed to the Government
of the Leeward Islands. (~) The first Assell1bly met on
the 1st February, 1774, under a proclamation dated
30th November, 1773, issued in consequence of a peti-
tion from the inhabitants, who, in consideration of being
allowed a House of AssembJy, had proll1ised to grant an
impost of 4~ per cent. " similar to that which was paid in
the other Leeward IsJands." That grant was the first act
of their legislature. (3)


TORTOLA.


On application for a copy of the Iaws, the commis-
sioners learnt with surprise, that in this island all the laws


(1) Walker's Gazetteer, 4th edito
(2) Ibid.


(3) 1 B. Edw. 460,461.




170 VIRGIN ISLANDS.
remained in manuscript, and were, as might be expected,
many of them in an imperfect state.-3d Rep. W. l. C.
p.8!.


COURTS.


The courts established in the Virgin lslands for the
administration of civil justice are, the Comt of Chancery,
the Court of Common Pleas, and the Comt of Enor.
The courts established in the Virgin Islands for the admi-
nistration of criminaljustice are, the Court of King's Bench
und Grand Sessions of the Peace. There is no Court of
Exchequer in this island.


Court of Chancery.
Courts of Chancery for this island are usually held at


Sto Christopher's. A court is only held at '1'01'tola when
the Governor visits this part of his government, and then
fol' no precise time, but so long as his ExceIlency may
think proper, from the nature of the business to be done.
There is u manuscript volume of the rules of practice in
this comt, shewing only sorne slight variations with respect
to time, &c. from the practice of the High Court of Chan-
cery in England.-3 Rep. W. I. C. p. 81. There never
was within· this island at thc same time, more than one
Master in Chancery, until within a month before the
arrival of the commissioners, when a Master in Chan-
cery extra was appointed at the particular solicitation
of the master. There is not, in general, more business
than can be transacted by one master. '1'he masters
receive no salaries, but are paid by fees; they give no
security. An appeal to the King in Council may be
made from the Chancellor's decision, interlocutory as
well as final. It has, it is said, the effect of staying the
proceedings, and when mude from interlocutory orders
may occasion great delay. Costs are" frequcntly" taxed
in this comt by the master.


There is atable of fees established in this comt by a
former Chancellor. The fees of this court have always
been regulated by the authority of the Chancellor.


Court o/ Common Plcas.
The Comt of Common PIeas derives its authority from


an Act of Assembly passed in 1783. It has the same ju-




VlRGI~ ISLANDS. 171
risdiction as that of the Court of Comn1on Pleas in
EngIand, and follows as nearIy as possible the practice of
that comt. The court generally sits two, three, or four
days in the months of April, May, and June, respectiveIy,
in the month of July probably a day or two more, and the
August court is generally eontinued for every eight or ten
days, until the end of September, and sometimes as late
as October.


Actions are commenced by filing not only a declaration
but a eopy of an account, bond, note, bill, &c., and
pl'ocess is served by leaving these doeuments at the de-
fendant's last place of abode, with an indorsement naming
the plaintitf and defendant, and setting forth the cause of
action, damages, &c. A person who has never been in
the ¡sland cannot be sued unless he has a power of attorney
upon record. The Court Act gives the power of arresto
A person not a free holder may be arrested for any sum of
money, but if for a sum undel' f:~O the person arrested
may be discharged on his swearing that he is an inhabi-
tant, and that he does not intend to depart from these
islands, and on his entering a common appearance.


Bail must be given for all sums aboye cf~O, but a per-
son possessing ten acres of land, &c. is exempt from
arrest.-2 Rep. W. I. C. p. 118, and S Rep. 82.


The writ of execution is the same as in the other islands.
Free persons of colour can sue and be sued in this court;
are competent witnesses; are not admitted as jurors; are
by law excluded from the House of Assembly; are not
subject to any penalties from whieh a white person is
exempted; and are" subject to no other disabilities than
such as exclude them from all public situations ando
offices." An appeal lies from this court to the eourt of
Error, where the sum in dispute exceeds 1'300, but in
order to suspend execution it must' be brought within four-
teen days after judgment.


Complaint Court.
Small debts under 1'20 are denominatedcomplaints, and'


are reeoverable in this c()mt. The costs do not exceed'
the sum of of!. 168. 3d. up to execution, and'suits are in'
general speedily decided.


Court of Ordinary.
This eou!'t derives its authority from His Majesty's




1712 VIRGlN ISLANDS.
commlsslOn to the captain-general, who appoints his
deputy in this island, to grant probates of wills, letters of
administration, and marriage Iicenses. AH wills executed
in the Virgin Islands are proved here: after wills have
been proved and registered, they are returned to the
executor.-3 Rep. W. I. C. p. 83.


The costs of this court are not taxed. There is no pro-
cess of excommunication, 01" other effectual mode of
punishing contempt in this comt. There is no means of
obtaining a divorce in this isIand, nor is there any mode by
which a wife can obtain a separate maintenance.


Court qf Pice-Admiralt!f.
This court derives its authority from the Court of


Admiralty in England. It has jurisdiction in matters of
prize and revenue. lt has one judge, a surrogate. The
present surrogate was appointed by the Governor. He
holds bis office during good behaviour, and is removabIe
by the Governor. The former judge was appointed from
England. There is not llluch business done in the In-
stance Court. There have been a few instan ces of pro-
ceedings for sealllen's wages; they are not attended with
much expense, and are said to be very sUlllmary.


N o Admiralty Sessions are held in this island; persons
charged with piracy were formerly carried to Barbados,
but will now lllost probabIy be taken to Antigua, the chief
seat of this government.


Court qf Error.
This court is established by the Coul't Act. The


judges of the Court of Common PIeas are excluded by Iaw
from sitting in the Court of Error. The members decide
by a lllajority.-3 Rep. W. l. C. p. 408.


King's Bench and Grand Session.
This courtderives its authorityfrom certain clauses ofthe


Court Act. The judges of this court are, the Lieutenant-
Governor, the members of His Majesty's Council, the
Justices of the Common PIeas, and the Justices of the
Peace. This court is held twice ayear, the first Monday
in March and the first Monday in September, at the
court-house. The King's counsel draws the indictment,
and prosecutes offenders in this court.-S Rcp. W. l. C.
p.84.




VIRGlN ISLANDS. 173
The prcsident of the court always delivers a charge to


the grand jury. When the grand jury are desirollS of
advice upon points of law, they apply to the King's
counsel. There is no comt of Quarter Sessions in this
island, p. 85.


Esclteats.
There is no Escheat Court established in thesc islands.


""Vhen property has escheated to the crown "that is worth
applying for," said the King's counsel, a petition fmm tbe
parties to His Majesty is forwarded to our agent residing
in London; he presents it to the Secretary of State fol' the
Colonies, who submits it to His Majesty. The Secretary
of State directs tbe Governor to issue a writ of inquiry.
The Governor semIs a writ, directed to certain persons,
requiring them to issue a precept to the marshal for impan-
nelling a jury to tl'y the question of escheat 01' not; they
hear the evidence and decide accordingly. The judges
repol't the case to the Governor, who acquaints the minis-
ter with the result; and His Majesty has been graciously
pleased, in one case, to grant the land petitioned for to
the partics petitioning. Cases of intestacy are frequent
among the unmal'l'ied coloured Ínhabitants of those islands,
and property frequently escheats to the crown for want of
heirs.


sraves escheating are not thereby considel'ed as vir-
tualIy freed.


Whel'e there are illegitimate childl'en unprovided for,
all the property left by the parent is allowed to remain in
the possession of the infants' friends, for their sole benefit.
No case of ibis kind has ever been represented at home
by petition 01' otherwise.-3 Rep. W. I. C. p. 87.


LA W OFFICERS.


The Attorney and Solicitor-General for the government
reside at Sto Christopher's. One crown officer and King's
counscl resides and practises in this island.


Bat'risters and Attornies.
It is not required that persons applying to be admitted


as counsel in the courts of this island should have been
previously called to the bar in England, 01' have kept a
specified number of terms in any inn of court. A certifi-
cate signed by the Attorney or Solicitor-General and one
practising barrister, attesting their fitness, will enable




174 VIRGIN ISLANDS.
them to obtain admission to the bar in the courts of this
island. To act as solicitol's 01' attol'llies in this island, it is
not necessary that persons should have previously served
any clerkship. The branches of the profession which it
is found advantageous to keep distinct and separate in the
mother country, are here every where united. In this
colony these gentlemen must be admitted as barristers
in the common law COUl'ts before they are allowed to
practise as attornies 01' solicitors, and after such admission
no other formality is requircd.-3 Rep. W. 1. C. p. 91.


Justices of the Pea ce.
Informations in this island are always upon oath. J us-


tices of the peace have a summary jurisdiction in a few
cases under the police acto J ustices ha ve no jurisdiction in
civil matters in this island. Justices of the peace have n
jurisdiction in disputes relating to seamen's wages, p. 92.


The Court of Chancery for the Virgin Islands being
frequently he Id at St. Christopher's, five members of
council, disinterested and indifferent persons, not judges
of the court a quo, can never be assembled in this island
to compose a court of error; and where a writ of error is
sued out in tbe Virgin Islands, it is considered as post-
poning, sine die, the payment of any debt exceeding ol,'300.


Court of Grand Sessions.
Jn the criminal court an the judges of the Court ofCom-


mon PIeas and aH justices of tbe peace named in the com-
mission, compose the Court of Grand Sessions, p. 93.




( 17,1)


BARBADOS.
-


Barbados is one of the Caribbee Islands in the West
Indies. It is the most easterly of them, and lies between
59° 50' and 60° 2' W. long., and 12° 56' and 13° 16' N.
lat. It is supposed to be 25 miles from north to south,
and 15 from east to west, and contains about 107,000
acres of land, most of which is under cultivation. (1)
It is divided into five districts and 11 parishes, and con-
tains four towns, Bridgetown, (the seat of government),
Ostins or Charles Town, Sto James's, and Speight's Town.
It is now the seat of a government comprising within its
jurisdiction Grenada, Sto Vincent, and Tobago, each of
which, however, retains its separate legislature. (See ante,
123.)


HISTORY AND CONSTITUTION.


It was probably first discovered by the Portuguese in
their voyages from Brazil, and from them it received the
name which it still retains. It was found without occu-
pants or claimants. It had been deserted by the Cha-
raibes, and the Portuguese, regarding it as of little value,
left it in the state as when discovered by them.


Formal possession was afterwards taken of the island
by an English vessel, the crew of which landed there in
1605, and on the spot where James Town was afterwards
buílt, set up a cross with this inscription, "James, King
of England and this island."(2) In this manner they
took formal possession of the place, but made no settle-
mento Sorne years afterwards a vessel of Sir William
Courteen, a London merchant, accidentally visited the
island, and made so favourable a report of it, that the Earl
of Marlborough (then Lord Ley) solicited and obtained
from James I. a grant of it to himself and his heirs in per-
petuity; and William Deane being appointed his gover-


(1) Eneye. nrit. Edwards states
tbe longitute to be 59° west from
Londoo, and the latitude 13° 10'
north; tbe lCllgth to be ~ 1 mi les, the
breadlh 14, amI tbe surface 106,470


acres, vol. i. 344; 1 Rcp. W. l. C. 57.
Tbc islalld is said to be about SO
miles long and 16 broad.


(2) 1 B. Edw. 317.




176 BARBADOS.
nor, arrived thel'e in 1624, and laid the foundations of
.James Town, which was the first English settlement In
fhe island.(3)
. In the first year of Charles l. (1625) James Hay, Eal'l
of Carlisle, either not knowing of the Earl of MarIbo-
l'ough's patent, 01' disregarding it, obtained letters-patent
under the great seal of aH the Caribbean Islands, including
Barbados, and, after sorne dispute, Lord Marlborough
waived his prior grant in consequence of an annuity of
oC300, and Lord Carlisle became sole proprietor.(4)


By Lord Carlisle's patent he was empowered "to make
such laws as he 01' his heirs, with tIte consent, assent, and
approbation of the free inhabitants of the said province,
or the greater part of them, thet'eunto to be called, in
such manner and form as he 01' they in his or thei1' discre-
tion shall think fit and best." And" to do and pe1'form
aU and every thing and things whieh to the fulfilling of
justiee courts,(5) 01' manner of p1'oeeeding in thei1' tribu-
nal, may 01' doth belong 01' appertain, although express
mention of them in these presents be not made, yet we
have granted fuU power by virtue of these p1'esents
therein to be made, so as, notwithstanding the aforesaid
laws be agreeable and not repugnant to reason, nor against
it, but as eonvenient and agreeable as may be to the laws,
statutes, eustoms, and rights of our Kingdom of England."
The patent also provides, that every liege subject of the
King brought 01' to be brought within the provinee, and
their children born 01' to be born there, sha11 be natives
and subjeets of His Majesty as free as they that are born
in England.(6)


By virtue of this grant it would seem that the pro-
prietary proeeeded to appoint a Governor and Couneil,
and (in eonformity with its aboye cited provisions) to eall
a legislative assembly, and to ereet courts of justiee. It is
certain at least, that a Goverllor and Assembly were in
existenee as early as 13th May, 1646, there being an aet
of the island under that date passed in the name of those
authorities; and there is reason to suppose that some of


(3) It is commonly considered as
having al so be en the tirsl English set-
tlement in lhe West Indies, but
Edwards shóws that Sto Christopher
came into our possession jn 16~3.


(4) 1 B. Edw. 320.


(5) 'fhe passage .tands tlm. in B.
Ed wards' work. The words ought
perhaps lo be, "justice, the coorse or
manner of proceeding ill their tribu-
nals."


(6) 1 B. Edw. 321, n.l.




BARBADOS. 177
the acts to be found in t,he printed stutute-book may be
referred to a still ea.rlier period.(7)


The grantto Lord CarlisIe wasafterwards, during his
absence from EngIand, revoked, and a new one issued~to
the Earl of Pembroke, in trust fol' Sir "VilIiam Courteen,
by the crew ofwhose vessel the island had been first bene-
ficially posses.sed; but on Lord Carlisle's return, his infIu-
ence obtain~d un annuIment of Courteen's grant, and new
letters-patents in his own favour again restored him to
his former privileges.(8) Vnder this second patent Sir
William Tufton was sent out in 1629 as governol' fol' Lord
Carlisle.


During the early part of the troubles in England, the
~Iaim of this proprietor, whether disputed in the isIand,
01' disregal'ded umidst the confusions at home, was tacitly
relinquished; but in 1646 the then Earl of Carlisle, son
alld heir of the patentee, brought forward his pretensions.
He entered into a treaty with Lord Willoughby of Par-
ham, conveying to him aIl his rights by Iaw for ~1 years,
on condition of receiving one-half the pl'ofits, and then
concurred in soliciting a commission fol' him as chief go-
vernOl· undel' the sanction of the royal authority. In thus
consenting that his governor should be clothed with the
authority derivable from a commission from the King, he
was perhaps infIuenced by the apprehension, that aftel' his
title had for some years laid dormant, and the p]anters had
begun to fIourish in the absence of his oppressions, they
might refuse obedience to his unsuppol'ted commands.
'Vhatevcr might be the motive on which he proceeded,
the act itse]f was plainIy at variance with his claims as
proprietor.


Vndel' this commission Lord Willoughby arl'ived at
Barbados, and took possession of the government; hut
soon afterwards the regal authority being abolished in
England, the isIand became subject to the Common~
wealth, by whom a new governor was appointed.


(7) See particlllarly an aet reciting,
that "divcrs laws had been made by
assent of the govcrnor, coullcil and
frccholders ont of ever;; pal'ish of this
¡sl.nd, intitnled a General Assembly
for that purpose e1ecteu .nd rhosen,"
&c. Hall's Acts, No. 4. And ,ce ih.
No. 1, which provides (hat .. all ae(s


anJ sta tutes made amI published in
Ihe i,land, Of viewed, eorreeted and
confirmcd by any governor anrl coun-
eil, or president and eouneil, by vir-
tue of anv commission fl'olll ~KinO'
James or Charles n., &e. be in full
force and virtue."


(8) 1 B. Edw. 32\?
N




178 BARBADOS.
On the Restoration Lord 'Villoughby applied to


Charles n. for leave to return as g'overnor, but this
was opposed by the inhabitants, who now consi.dered him
rather as the representative of the claims of the Carlisle
family than as the deputy of the crown, and who were
anxious to be placed entirely under the royal government.
They insisted that Lord Carlisle's patent was void in law,
and their case was referred by Charles to a commi.ttee of
the Privy Council.


During the discussions before the council an offer
having been made by one of the planters to raise a per
centage duty on the produce of their estates, on condition
that the King should take the sovereignty into his own
hands, Charles greedily grasped at the offer; and though
the authority of the person who made it was on the very
next day denied by the planters,(9) the hope thus raiscd
in the mind of t:hat needy amI extravagant monarch, of
realizing a revenue of a considerable amount, was not
speedily to be relinquished. The council vel'y readily
seconded his views; the unfortunate planters had no
power to resist; they were threatened with a revival of the
claims of the Carlisle family, who assumed to be lords of
the soil, and to treat the planters as mere tenants at will ;
they were refused to bc allowed to try in the courts here
the validity of the Carlisle patent-every art of cajolery
and intimidation was used, and the result was the follow-
ing compromise. The crown procured a surrender of the
Carlisle patent, and engaged to confirm the planters
in the legal possession of their estates, in considera-
tion of which the Assembly of Barbados was to grant
to the King, his heil's and succcssors, a permanent
ana irrevocable revenue of 41 per cent. to be paid in
specie on aH dead commodíties, the growth of the
island, that should be shipped off the same. Out of
tbis the Crown was to makc provision for the Earl of
Kinnoul, (1) the representative 01' the patentee, and to pay
off the different creditol's, claimants on thc profits of the
Earl of Carlisle's share 01' the patent; and the remain-


(9) 1 B. Edw. 332,333.
(1) This is still paid out of the 4t


per cent. funo, Ululer the name of
Loro Kinnoul's pellsion, so llameo
/'wit.h as much propriety," Mr. Broug-


bam observes, "as the holders of long
annuities might be dcnominated pen-
sioners." Colonial Poliey, vol. i. p.
551.




BARBADOS. 179
del' (snbject to the chal'ge of .1:1QOO per annum for the
governor's salary) was to be at the disposal of the King.
This arrangement was carried into efrect. Lord Wil-
Ioughby was sent out as the King's governor of Bar-
bados and the other Caribbee IsIands; (2) and the 4'k
per cent. duty was granted by act of the island passed
the 12th September, 1663.(3)


A Council having been appointed and an Assembly
summoned undel' the new commission, the Governors, (4)
Council and AssembIy, by declal'ation, bearing date the
7th Mareh, 1666, proclaimed "that the government of
Barbados should be according to the laws of England
and of that island, as had been theretofol'e used and
practised." (5)


Afterwards, byan act of the island,(6) bearing date 22d
March,lfi66, reciting the declaration of 7th March, "and
that nothing more conduces to the good and quiet of any
place and peopIe than the assuring and ascertaining 8uch
laws and statutes as they are to be governed and regu-
lated by," it was enacted, "that an su eh aets and sta-
tutes as have been made and published in this isIand
as reviewed, corrected and confirmed by any governor
and council, 01' president and counciI, by virtue of any


(2) He was appointed by letters·
patent, bcaring datE 12tb June, 15
Ch •• n. See this commission partly
recited in tbe Act 01 N evis, N o. 1 of
printcd eollcetion.


(S) 1 B. Edw. 3:l5. Mr. Edwards
says, that the planters finding "that
no support could be expecteu from the
people at home, whuse privileges lay
pros trate at tbe fee! of the restol'ed
monarch, passed Ihe act required 01'
tbem, and theír posteri I y still bear,
and, it is apprehended, wiII long
continue lo bear (he bUl'then of it."
lt is to be hoped, that the time has
llOW arrh'ed when as tiJe fund is at
the disposal of Parliament, an end
wilI be pUl to an im post that has been
as opprcssive in its elfeels, as it was
grossly disgraccful in its original exac·
tion. (See ante, 50, 51, notes (3), (4).
The aet( whieh is No. 36 of Hall'sActs)
makes no mention of the arrangement
above referred lo, huI professes to iID-


pose the duty for the maintaining" tbe
hanour and dignily of bis Majesty's
allthol'ity-the publie meeting of lhe
sessions-the often attendance of the
council-the reparation of tbe fOl'ts-
the building a sessiuns·house and a
prison, allll al! other publie charges
incumbent on Ihe government."
But these purposes bave been dis·
regarded in praetice, and to meet Ibe
expenses mentiuned, specific laxes in
addition to Ihe 4! pct cent. have
been levied in tbe colony. 1t is .aid
tbat payment in 'pecie, aecording to
the terms of the aet, is not now re·
qui,'ed. Colonial Poliey, vo!.l, p.
:>52; but see ante, p 50, note (3).


(4) Lord Willoughby did not re·
main long aftel' his arrival, and three
persons were appointed to execute his
commission. Hall's ACIS, p. 3.


(5) See preamble to No. 1, IIall'.
Acts.


(6) No. 1, HalJ's Acts.
N 2




180 BARBADOS.
commission from King James 01' Charles 1., 01' by vil'tue
of any commission from his most graeious Majesty that now
is, either immediately from either ol' their said Majesties,
01' mediately from them 01' either of them, by, from 01'
under the late Earl 01' any former Earl of Carlisle, by 01'
with the assent 01' consent ol' the l'epresentatives of this
place legally called and continued, which stands unre~
pealed by any powel' and authorities afol'esaid, be in full
force and virtue in this island, and that alllaws, acts and
statutes made 01' published in this island by any other
power 01' authority than as before expressed, are utterly
void and of none eftect, any declaration, order 01' onU.
nance to the contrary, notwithstanding."


By the same aet eertain eommissioners are appointed to
compile aH the "aets and statutes in force as aforesaid,
and to cause them to be inrolled in one book by the
seel'etary of the island." And this, as appears by the re-
turn of the commissioners, bea1'ing date 18th July, 1667,
was afterwards done; and the aets so eompiled by them
are at the COl11meneement of the book of printed laws.
Hall's Aets, No. 52 to No. 36 inclusive.


Since the commission to Lord ""Villoughby, in 1663, the
island has been eonstantly governed under commissions
granted in like fo1'm by letters-patent from the crown,
with aeeompanying instructions to the govel'llol's.


From the same period Couneils ha ve been regularly
appointed, and Representativc Asscmblies summoned, and
by these assemblies, with eoneurrenee of the eouneil and
of tIte governor, laws have been enacted and sent homo
fOl" the allowance of His Majesty in Council, according to
the usual form oi" constitution in colonies that have legis,
latures of their own.


In this island the Couneil is eomposed of twelve mem.
bel's. The governor sits in coul1cil even when the council
are sitting in their legislative capacity-a method which
in othel' colonies would be considered as improper and
unconstitutional. (7) The Assembly consists of twenty~
two, of whom twelve are a quorum. They are electetl
from the different parishes, und every pcrson electing, 01'
eleeted, must be a whitemal1 professing the Christian re~
ligiol1 and a free 01' naturalized subjeet of Gl'cat Britain~


(7) 1 B. }:dll'. 349.




BARBADOS. 181
having attained tite agc of twenty-one. He must also
posscss a ccrtain qualiíication in land. (8)


In tbis islantl there are an Attorney-General and a
Solicitor-General. The former l'eceives a salal'y of ~QOO
currency per annum, paid by the isIand; tbe latter acts
gratuitously. (9)


LAWS. (1)
The laws in force herc are, first, tbe eotumon law of


EngIand; seeondly, sueh Aets of Parliament as were
passetl before the settlement of the island, and are ap-
plieable to its eondition.


The bankrupt and pOOl" laws, the laws of poliee, tithes,
and the Mortmain Aets have been treated as not appli-
cable to the condition of the eolony,and are tberefore not
in force in it.-l Hep. "V. l. C. p. 5.


Of aets passed subseque:1tIy to its settlement, sueh only
are considered to afreet the eolony as have the island ex-
pressly named 01' virtually included in them; as is the
case where the laws are ueclared to extend besides Bar-
bados "to the "Vest Indies," 01' " to the eolonies." And
all navigation aets, amI aets of revenue and trade, and aets
l'espeeting shipping, are obligatory, though the colonies
are not named in them.-l Rep. 'V. I. C. p. 5.


Al'l'ests and Underwl'iting.
Several aets, numbel'eu 51,59, 68, 76, in Hall's Laws,


and 10 in l\'loore's Colleetion, have been passed, regulating
tIte manner of giving tiekets out of the seeretary's office,
so as to cnable parties to leave the island. Before the
passing of any of these aets, it lIad be en the eustom of the
island that aU l'esidents therein, exeept married women
and ehildren lIndel' fourteen, intending to depart thenee,
were obliged to put up their llames publicly in the seC1'e-
tary's offiee, aml within a cel'tain time afterwards, 01' eIse
upon giving eertain securities, they obtained a ticket 01'
licenee from the secl'etary, signed by the govel'l1or, as a
warrant to the master of the ship for tbeir conveyanee-
the il1tention of tbis law being that persons indebted might


(8) Hall's Acts, No. 148, el. 1 ; 152,
el. 3,4, [" 6, 7,3.


(9) 1st Rep. W. r. C. 59.
(1) See (ante, p.:3 tu 16,) Ihe re·


marlis on tlJe general tapie, ¡'ow far Ihe
colonies are subject (o lhe IHW 01' thé'
lUother COllutry.




182 BARBADOS.
not go privately, but might before their departure be com-
l)elled to answer aH elaims against them. And creditors
desirous to prevent the issuing of such tickets, entered
their elaims at the secretary's office against the persons so
intending to depart, which was called underwriting ihem.


The aboye acts of Assembly were passed chiefly to
regulate the system of underwriting, which is still (subject
to various provisions imposed by those acts) in force in the
island. (2)


Besides this eourse of proceeding, the practice of the
isIand authorises arrests on mesne process, as in EngIand.
It does not appear on what law this practice was originalIy
founded; but "by established usage a defendant may be
arrested on mesne process for any sum aboye .1:8." No
affidavit of the debt is required, (3) and arrests are said to
be allowed in some cases for unliquidated damages. But
by the aboye cited act, (H. 59, el. 4,) it is provided that " no
person having ten acres of free'hold land within this island
shall be liable to arrest, nor any other inhabitant for any
sum under lOOOlbs. of sugar, 01' .1:6. 5s. in money, but be
summoned to answel' suits, &c. in the precinct where he
lives, according to the act for judicial proceedings, unless
he hath taken out his ticket to depart this island, not
having given bond in the secretary's office to answel' all
underwritings that shall be entered against him within
twenty-one days." This exemption, however, is narrowed
by the act (Moore, 10,) which enacts that no person shall
.be exempt by virtue of that elause unless at the time of
issuing the warrant he was "actually seised in fee and
possessed of tcn acres of freehold land within this island,
under one 01' more such title 01' titles, and with such qualifi-
cations with l'espect to the length of posscssion 01' otherwise
as would entitle aman, according to the laws of this
island now in force, (4) to elect 01' be eIected an assembly-
man 01' vestryman, 01' to servc as a juror to try real
actions."


(2) See preamble of No. :)9, Hall's
Aets, and 1st Rep. W. 1. C. 35, 160.


(3) 1st Rep. 34, 159, 160. Thal
is, no affidavit i. made before lhe aro
rest. Bu! if lhe arrest is fo,' lIIore than
i. really due, the defendant's attor·
bey may give notice to the plaintitf's


atlorney to allenll Lefo,c the judgc
anll makc o.llh of whal is ,eally duc.
¡¡nd bai] i.< takea for tlJaI sumo J st
Rep. W. l. C.160,


(4) As to ",hiel! qualification sce
Hail, 14B, el. 1; l;Jt, el. 3, 4, 5, 6,
7, S.




BARBADOS. 183


COURTS.


'fhe eomts established for the administration of civil
justice in the Island of Barbados, are the Comt of Chan-
cery, the Court of Error 01' Appeal and Error, the Court
of Ordinary, five Courts of Common Pleas, one in each
district, the Comt of Admiralty, ano the Court of Escheat.
-1 Rep. W. 1. C. 19.


Besides these general courts there is, by a local aet, a
power vested in the governOl' to appoint a speeial eourt of
merehants and marinel's, as also a com't to take cognizanee
of persons about to quit the island in debt, which court is
believed never to have sato 'fhere al'e also what is called
warrant actions; these are dcscribed by the commissioners
as excrescences growing out of the authority given to a
single justiee to decide claims fol' sel'viee 01' for work amI
labour by servants :md labourers, and extending very
mischievously to those who exercise any manuallabour, as
shoemakers ano tailors, as well as to aU demands arising
fl'Om the sale of the produce of the island, and actions fol'
cattle under the amount of ,i'25.-Id. ib.


'fhe courts for the administration of criminal justice are
the Comt of Grand Sessions, held twice ayear; the
Court of Qual'tel' Sessions, which the cOllllllissioners said
did not sit regularly when they were in the island ; .alld
the Admil'alty Sessions, held pro t'e nata.-Id. ib.


Court of Cltancery.
'fhe Comt of Chancel'y is composed of thc governor 01'


prcsident, with four 01' more members of the council. 'fhe
Governor in Chancery, though often saio to act as
chancellor, i8 only primus ínter pares. Neithel' the.
governor as chancellol', nor the pl'csident acting as
such in his absence, l'eceives any fees. 'fhe governor
sitting as chancellor has no asse!'lsor nor professional
assistance of anykind. The decision is made by a ma-
jOl'ity of votes. 'fhe votes arc taken sil1gly, beginning
with the junior Illembers of the cOlmcil, and are given
publicly in open court.-l Rep. W. I. C. 19.


'fhere are two Masters appointed by the governor, and
l'emov'lble for misbehavioul'. They are paid by commis-
sion; they have fe es 011 the sale of estates. 'l'he Comt
of Chancery derives its allthoJ'ity f1'om the King's comlllifs-




B.\"ll~HADOS.


sion, ilmi ;Ya~ l'ccogl'izc\! ;1::; cxisting SGOll arter tite tidtlc-
1112nt of ¡he colully.-l Hep. 'V. J. C. p. 'W.


The judges oí:' this Gourt are supposed to !lave aU the
authol'ity oi" the Lord Chancellor in England, except in
cases wholly illapplicable to the colony. 'l'hcy aSSUlllC
and exercise j urisdiction in cases of lUllacy without any
special dclegation oí:' authority, but under the supposcd
general jurisdictioll belonging to a Comt of Chancery.
A petitiol1 is presented in the nrst instance to the governor
only, he directs a hearing at the next comt. The lunacy
when found, is, it is said, returned into the comt, amI in
this way thcy may possibly, but it Ís supposed mistakenly,
considel' themselves as getting jurisdiction.-Id. QO.


Tbere are no instan ces oi' bills filed for making infants
\Vards of court in this island, but it is supposetl the comt
would exercÍse the same jurisdiction as thc Comt of Chan-
cery in England. There i8 no systell1 of laws in this
island similar to the bankrupts' code in EnglaIHI; Lut the
principIe of the ccssio bOllorlllll is ac1mowleilgell in thc
establishment of a court fOl" the relief of inwlvcnt debto!"s.
The rcmcdy, of comse, extends to persons who are not
traders.


The law of descents, as regards frcehold property, is
thc same in this colollv as in Englal1tl.


The law governing tile disü:ibution of persollal pro-
perty in cases of intcstacy, in Barbados, is substantially
the same as the law regulating thc distribution of Lhe
same spccies of propcrty in similar cases in Englulld.


Tbe practice of tIle Comt of Chancery in Barbado"
professes to conform to that of the Comt of Chanccry in
England, except where it is aItered by locallaws Ol" :;pe-
cial orders of thei!' own.-Id. 20.


The decree made on a hill of forcclosure of a morLgagc
is to this effect, that the moncy be paiel into court within
11 limitcd time, (usually a montll,) alld in dct~tUlt of pay-
ment a sale of the estate is directed. Hut to prevent a
míschief, once ve1'y cxtenslvc, of estatcs being obtaillcd
under these circull1stances fol' prices wholly inadequate,
ihe property must be appraised, aneI cannot be sold fOl"
lcss than the appraised "alu e, witllOut express leayc frolll
the court. The appraisement is made upon oatIt. The
appraisers are freeholders and I1cighbours. Thcy 1'c-
ceive no fees. They are saiLl in general to act conscien-
tiously. The master cannot receivc a bidding "undcr the




BAliBAD05. 185
appl'aisemcnt." A biJder could not he held to a bidding
below the appraisement, hut the master, it is said, repol'ts
sueh bidding to the comt, and application is then made fol'
leave to seli fol' les s than the appl'aised value. Upon this
application the comt exel'cises a discl'etion, taking into
its consideration the circumstances of the estate, amI the
questíon whethel' an immediate sale is desirable.-l Rep.
W. 1. C. p.21.


On a sale aftel' an appl'aisement, there is a deposit,
",hieh goes fil'st to the payment of the costs of suit.


On behaIf of a wife, fol' a separate maintenance, on
accoullt of misconduct in the husband, the remedy in
Barbados is sought by petition to this court. ReIief in
such case is never obtained by bill, but by petitioll.


'rhel'e is no examiner in this isIand; the registrar acts
as cxaminel'. Orders and decrees of the COUl't are ell-
forced as in EngIand, by process of contempt and seques-
tration,-1 Rep. W. l. C. p. 22 to 24.


An appeallies fl'om a decision in this court to His Ma-
jesty in Council, if the sum sought to be recovered amoullts
to 500l. sterling. An appeal, it is said, lies only on a
dccree, or such interlocutory order as amounts to a final
decree. Security is given by bond (according to the act,
No. 12:3, HaU's Act, 10th of May, 1720,) fol' lreble (5)
the value uf the property in dispute, and fol' a11 custs and
damages occasioned by the appeal. The appeal, it is also
said, in this isIand suspends an proceedings, evcn in
the master's office, as the taking accounts, &c. but the
party who has obtained the decree 01' judgment appealcd
against, will not be prevented f1'om pursuing his advantage
to levy and seU, on giving security in double the sum to
make a l'eturn to tt1C appellant if the decl'ee should be
rcversed,-ín othel'words, a provisional payment takes
place with secul'ity fol' rcstitution. The appelIant aIso
gives security tu prosecute the appeal wíthiri a yeal'.-
1 Rep. ·W. l. C. p. 26. .


'rhe distinction uf costs between party and pal'ty, and
attorney und client, díd not prevail in practice, and was
not familiar in name.-Id. 27.


(5) The w",'d in the reporl i, ¡reble;
this scems lo be a mistake. A copy uf
the ael now before me says dOHble,


and to\\"ards the concIu.ion of thi, very
pa"agraph the cOlUmissioncrs use tbe
word diJuble.




186 BARBADOS.


COllrt 01 Excheqller.
The Court of Exchequer derives its authority from a


law of the island, (No. 135, Hall's Laws,) and from the go-
vernor's commission. It was established in 1680 by an order
of the governor amI council. It was fOl'mcrly considered as
possessing both an equity and a common law jurisdiction.
There is now no equity side of the Exchequer, except on
the part of the crown; the commission is said to have
be.en altered about fOl'ty years ago. 'rhe common law
side l'emains, but the right to sue in it is explained and
limited by the act (No. 135, Hall's Laws).-l Rep. W. l.
C. p. SO.


This court is eomposed of the chief bal'On and four
puisne barons, of whom tltree nÍay hear and determine;
and the judges are appointed by the governor, with tbe
adviee and consent of the majority of the council. The
tenure of the office is durante bene placito. They are re-
movable, 01' may be suspended in the same manner as thc
judges in the Court of Chancery. They have no salary.
The chief bamn, and in his absence, the senior baron,
receives certain fees j the same as the chief justice of the
Court of Common PIcas. Any deed affecting real pro-
perty requires to be registered, ami afee is paid on the
acknowledgment. They also receive seal money, fees for
taking private examinations of married women, &c. &c.
The officcrs of the court are the remembranccr and
marshal, both patent offices, performed by deputy. They
are paid by fees of office j in case of misconduct in either
of them, the ehief baron complains to the governor¡ who
has the power of suspending them, and the consequences
are the same as were before mentioneu in a like case in
the 'Court of Chancery.-l Rep. W. l. C. p. 30.


The Court of Exchequel' sits in the Town Hall in
Bridge Town, and is appointed to be holden once every
four weeks on a Friday, throughout theyear, for the trial
of causes betwecn party and party; but for His Majesty's
business it may sit at any time.


The judges of this court profess to be governed " by
the laws of England and the laws of the island." They
did not appear to have any collection of rules 01' orders of
the court prescribing any peculiar modes of practice, so
that, where they diflcr f1'om the p1'actice of tbe courts in
England, the variation is not recorded. Proceedings 011




BARBADOS. 187
the common law side of this court for the recovery of
debts, are by information by the attorney-general on be-
half of the crown, and by quo minus by prívate persons. A
defendant may be arrested for any sum exceeding eight
pounds whetber claimed as a debt 01' damages, and tbe
latter may be unliquidated. For an alleged libel upon the
attorney-general. a defendant, who was aftenvards acquit-
ted, was htM to bail in 3000l. For a demand under tbe
amount stateu, (eight pouncls,) a bench action lies. A bench
action ís in the nature of a proceeding in the English courts
of conscience, and wiII be considered in the observations
upon the Court of Common Pleas. Those freeholders
who are qualified to vote at elections are exempted from
arrest by process of this comt. If bail are objected to,
their sufficicncy is deterrnined by the chief baron. If a
defendant cannot procure bail he may líe in prison an in-
definite time; the plaintiff cannot be compellecl to pl'oceed
with the action, and the defendant does not become super-
sedable on account of the plaintiff's neglect.


There are no records of these courts on parchment,
}mt copies of proceedings are made up upon paper, and
kept by the proper officer.


'fhe execution issuing upon a judgment recovered in
this court is the same as in the Court of Common Pleas,
except that executions out of this comt are levied aH the
year round, as weH in vacatioIl as in term time.


The commissioners were not aware of any privilege the
Cl'Own enjoyed, 01' any peculiar means it possessed of
securing its dues, 01' enforcing payment of them in this
colony. The process of the Court of Exchequer in
England, at the suit of the crown, is supposed not to be
executahle in this island.-l Rep. "V. I. C. p. 31.


Actions in this court are said to be less dilatory, hut
more expensive, than proceedings in the other courts.
Costs are taxed by the ehief baron himself agrecably to
a docket estahlished by him under the authority of thc
governol'.


The attorney-gcneral was of opinion, and no doubt
rightly, that a writ of error lies fi'om a decisioll in this
court to the Comt of Appeal and Error in the island, thc
same as from the Comt of Common PIcas. He never
knew an appeal in revenue cases, bllt supposed therc might
be one. The chief baron was not aware of any writ of
error, 01' appeal tú the colonial court, hut on1y of an appeal




188 BARBADOS.
tu Bis lVIajesty in Council, (which is· ulterior whcre thc
vallle is sufficient,) uf which he rernernbereu. one instance
arising on a penal statute. An appeal, it was again said,
but the comrnissioners thOllght, under sornc rnisapprehen-
sion, would stay aH proceedings.-l Rep. ·W. 1. C. p. 32.


Court of Common Pleas.
Thel'e are five courts of Cornmon PIeas in Barbados,


one being held in each of the five districts of the island.
They derive theil' authority frorn acts of the local legisIa-
turco They have the >:ame jurisdictioll as the Court 01'
Common PIeas in EngIanu, except as to fines ancl recove-
ries. The judicial establishment consists of a chief judge
amI foul' assistant judges in each court. These are ap-
pointed and rernovable in thc same rnannel' as the other
juclges, and the tenure of their offices is the same. They
have no salul'y; the chief judge (only) receives the custo-
mal'y fees for proving deeds, taking examinations uf
married wornen touching the transfer of real property,
&c. &c. But the amount of aU the fees 01' the judges oi'
the five courts is supposecl not to exceeel 15200l. cUl'1'ency
per annum.-l Rep. 'V. l. C. p. 32.


The officers of this court are the prothonotal'y and
mal'shal, patent oHices, pel'fol'med by cleputies, who gene-
rally farm them f1'o111 the patentees for a term of year:;.
They receive fees for official services, arc undc!' thc COI1-
troul of the judges, and may be suspended 01' removed by
the governol' fol' misbehaviour.


Tbc sittings of the courts are regulated by the sta tutes
of the island. Each court sits in its own precinct.-
1 Rep. W. 1. C. p. 33.


Actions are commenced in these courts by filing a
ueclaration in the office, ancl scrving a copy of it togcthcr
with a summons, upon the defendant personully, 01' at bis
\a\>t l)\ace 01 abouc, excCI)t in cases of arresto Arrcsts
are made by virtue of a process unJer the hand and seal
of the governor, addrcssed to thc provost marshal, 01' his
lawflll deputy. Appeal'ance is maele on thc second comt
day afte!' service of the summons. The rules of practicc
in these courts are said to Yury a little f1'ol11 those of the
Court of Common PIeas in England.


A judgment may be obtained in general on an action in
this court within a twelvemonth.




BARBADOS. 18!)
The power of al'rcst is exercised in these courts, but it


uoes not appear whence it was derived. There is no law
of the island by which it is given. The only law upon the
subject is the one whieh gives the exemptions.-3 Rep.
'W. I.C. p. 34,.


Freeholders owning ten. acres of land, and capable of
eleeting, 01' being elected to serve in the Ilouse of
Assembly, are exempted from arrest. Not so women 01'
Jews, 01' frceholders whose deeds have not be en proved.


A ¡tabeas corpus is obtainable upon application to any
chief judge, by the eommon law, amI is supposed to make
a part of the govel'llol"s instl'uctions.


The chief justice of the precinet decides as to the
sufficicncy of the bail, if the sum fol' which the defcndant
is arrested exceeds :2001. On arrest a bond ought to be
given by the plaintiff conditioned for the filing of the de-
claration within three days, engaging to prosecute his
claim without greater dela}'. If the act is complied with,
the objeet it had in view is clearly not eflectuated. In a
case where the defendant cannot procure hail, and goes to


- prison, and the plaintifl' does not proceed with his action,
the Crown lawyers are not agreed whether (e ven supposing
the plaintiff's bond to be forfeited, whieh, however, thcy
do not seem to consider it,) the defendant would be entitled
to his discharge.-l Rep. W. I. C. p. 35.


By the law and practice of this island, an action must
be tried where the defendant lives;-l Rep. W. l. C.
p.36. '


The pleadings used are in tended to be exactIy the sume
as in the Court of Common PIcas in England.


The pleadings are all entered in the Pl'othonotul'y's
Office upon one paper, and this serves for a record.


The jury indorse their verdict upon it, and it is signed
by the foreman. The venil'e is not entered upon each
issue, because there is only one venire upon an jury
actions. The pleadings are not opened to the court by
eounseI. There are no abstracts made for the judges.
The jury is addressed by the counsel upon all the facts,
and an the law· of the case. Upon al'guments on special
verdicts, and demul'rers, &c. thel'e are no paper books
containing the points and authorities upon which the
counsel intend to rely, made up for the information of the
judges.


The proof of debts, whether by specialty 01'. simple




-190 BARBADOS.
contract, when the creditor resides, aml the debt accrues
in Englanu, is rendered surprisingIy easy by 5 Geo. 2,
cap. 7. The merchant's books are produced, and the
accounts sworn to befare the Lord Mayor, (in Lanuon,)
usually by a c1erk, sometimes, it is said, by the merchant
himself, the party in the cause. But the Attorney-General
observed, "we object to that (the latter) now, and the
court allows the objection." Yet tbe words of the act
are, " It sha11 and muy be lawful for the plaintijf or defend-
ant, to verify aml prove any matter by affidavit 01' affirm-
ation, anu every affidavit cel'tified under the city seaI,
and transmitted, shall be of the same force as if sworn
viva voce in open conrt."-l Rep. W. I. C. 37, 38.


Witnesses attending the courts of this island do not in
general receive their expenses.-l Rep. p. 38.


When any point of law arises on trial of a cause, ami
the counsel on either side apply to the court to have a
special verdict, the judge is bound to grant, and the jnry
to find it.


Unless reasons in arrest of judgment are filed, (which
they frequently are merely for delay,) execution comes in
fonrteen days after judgment is entered up.


Judgments in this island are not registered, but are
entered in the prothonotory's offiee, and when it beeomes
neeessary, they must be searched for there. Lands are
bound from the judgment, which renders the circumstance
material. The writ of execution "runs against" or
operates upan gaods, lands, and body, all at once; some-
what resembling a statute staple formerly known in prac-
tice in England, but without the delay and charge of a
"liberate." The lawyers are agreed (however the prac-
tiee may hale been otherwise,) that the provost marshaI
ought to take them in ,yuccession. And now a manuseript
aet direets, that he shall not keep the body, ir lands and
goods are pointed out to hilll.-l Rep. 38.


The counsel in this ¡sland reeeive their fees (out of
court) frolll the client himself, and not through the lllediulll
of the attorney, and it is said can recover them by action.
This was the case when the characters of barrister and
attorney were blended, but the doctrine would seelll to be
uaubtful at present.-l Rep. 40.


"Vrits of error are not often resorted to in Barbados
for purposes of delay, being too expensive.


If a new trial is granted, it is always upon the terms of




BARBADOS. 191
fil'st paying aH the previous costs. "Vhere the rule is
silent as to costs, the construction is the same as in the
Court of Common PIeas in EnaIand, not as in the Comt
of King's Bench. (6) '"


Bench Actions.
Actions brought for the recovery of a debt not exceed-


ing eight pounds, are denominated bench actions, being
decided without the intervention of a jury. They are
tried by any one of the judges of the Court of Common
PIeas, on one of the court days after the jury actions are
finished.-l Rep. W. l. C. p. 4Z.


Court C!/ Urdinary.
The Court of Ordinary derives its authority by com-


mission fi'om the crown. The governor 01' president heing
commander-iu-chief of the island, is sole judge. He sits
alone, having no legal power of caHing in any assistance.
_ The probate of wills, granting letters of administration
and marriage licenses, form the subject-matter of his juris-
diction. Marriages are either by banns 01' license from
the governor as ordinary. They have no canonical hours
in the colonies, and marry at what time they pIcase.


All wills are proved, but the probate is conclusive only
as to personalty. There are no restl'ictions on the power


_ of disposing of property by will in this island. The
solemnities requisite to the validity of a wiII are nearly
the same as in England, but the Barbadian statute of
frauds requires only two witnesses to a will of lands, and
even this rule is accompanied with a proviso, that " the
act shall not be construed to extend .to any will, written
throughollt in the handwriting of the testator."


The court sits at the government house as often as
occasion requires. lt is doubted whether an appeal Hes
from this comt to the King in Council, 01' to His Majesty,
as heud of the Church. But in either case the appeal
from this court is direct and immcdiate. 1'here is no
power of enforcing the payment of costs j consequently
there is no taxation of them, and no table of fees.-
1 Rep. p. 43.


(6) Tidd's Practicc, 9th edito 916.




192 BARBADOS.


Court 01 Admiralty.
The Court of Admiralty consists of two courts, a Prize


and an Instance Court, both held by commission issuing
frol11 the High Court of Admiralty in England. Both
possess the same jurisdiction as is exercised by the cor~
responding courts in England, as nearly as circumstances
will permito The prize court is held only in time of war.
The cases in the instance court consist of claims on seizures
by custom-house, seamens' wages, bottol11ry bond s, &c. &c.
-1 Rep. p. 43.


Asole judge of both courts is appointed from home in
time of war. The court is held as occasion requires. The
officers of the court are the King's advocate, the King's
proctor, the registrar, anel t11e l11arshal. In time of war
the judge receives a salary. The judge, in peace, is paid
by fees. The King's advocate has no salary, and receives
no fe es for a prosecution at the Admil'alty Sessions. The
registrar and l11arshal are patent officers paid by fees.
Thel'e is a great deal of business in t11e Prize Court in
the time of war. The receipt of fees has sometimes
exceeded the judge's salary (which is 30001. sterling per
annum,) in which case it gocs on to pay the next year's
stipend. The fees of the Court of Admiralty are every
where excessive. 'Vhere a seizure froni smugglers
amounts to 1001. 01' upwards, a condemnation will not
enable the captors to pay the expenses.


The Admiralty Sessions are held by a separate com-
mission für the trial of murder, piracy, and other offences
committed on t11e high seas. This comt is composed of
the Judge of the Admiralty who presides, the roerobers
of the council, and all flag officers and captains on the
station. The attorney-general and King's advocate are
employed.. In this court no fees are taken. The sessions
are hetd as occasion requires.-Id. 44.


Court qf Appeal and Error
. The Court of Appeal and Error is composcd of the


governor and council. There is. no lawyer upon the
bench. Sorne of the judges are mcmbers of ¡t, but it is
provided by the governor's instructions that they shall
not vote in any case brought froro the court where they
have acted as judges. The governor and council decide




BARBADOS. 193
by ~ majority. A writ of error to operate as a stay of
execution, must be brought within fourteen days after
judgment. It only lies where the principal sum in dispute
amounts to 3001. calculated in sterling money, costs not
included. An ulterior appeal lies to the King in Council
where the value is 5001. It is said that no appeal will lie
for costs eo nomine et per se. The security to be given
is regulated by the Governor's instructions, and the acts
(Nos. 22, 90, and 14.'3,) of the island.-l Rep.44.


Escheat Court.
The Escheat Court sits under a commission. The cases


in which it has jurisdiction, are commonly forfeitures to
the Crown for want of heirs. An escheator-general is
appointed by the Governor.-l Rep. -W. l. C. p. 45.


CRIMINAL COURTS.


Court oi Grand Sessions.
This, the principal court for the administration of crimi-


nal justice, is held under the authority of an act of the
island. A cOl11mission of oyer and terminer and general
gaol delivery is issued by the governor, for the trial of aH
capital cril11es and misdemeanors, in which aH those gen-
tlemen of the island who al·e in the coml11ission of the
peace are included. The person who presides is generalIy
a member of the Council, or one of the ehief judges, the
chief justice, or chief baron. The court is held twice a
year, in June and December, and the commission is limited
to four days.


AH offences eommitted by free persons, whether
coloured or otherwise, are tried at this court. This court
professes in its decisions and practice to follow the laws
and rules of the criminal courts in England. The preli-
minary proceedings which take place before the trial of
persons accused (lf offences, as the complaint, warrant,
apprehension, examination, and commitment, are aH trans-
acted before a justice of the peace in the same manner as
in the mother country. Depositions are· taken in almost
an cases,-misdemeanors as well as felonies.-l Rep.
W. l. C. p. 45.


AH ofttmces committed by freemen are bailable, exeept
murder.


o




194 BARBADOS.
Justices of the peace and coroners, are by law required


to attend these courts. The magistrate binds over the
party to appear and prosecute, but not always the wit-
nesses to give evidence.


A list of commitments is made out by the gaoler, and
sent to the attorney-general, who frames the indictment
and conducts the prosecution, for which he receives afee
from the prosecutor when the latter is of ability to pay it,
" not under five pounds."


Judgment may be arrested on the same grounds as in
England, but it must be determined befol'e twelveat night
on Friday. After sentence, the Governor has the power
of reprieve and pardon in ordinary cases, but in treason
and murder the Crown alone can pardon; the Governor
suspending the execution and sending the case home.


The grand jury will not receive a bill that is not pre-
sented by the attorney-general, the attorney-general con-
ducts aH prosecutions.-l Rep. \V. 1. C. p. 46, 47.


Court af Quarter Sessions.
A Court of Quarter Sessions is by law established in


every parish, amollnting to eleven in the island. Two
justices form a court; the senior taking the chair. This
court, though empowered by a local act to hear and de-
termine offences of petty larceny and misdemeanors, sup-
poses and acts upon the opinion, that it canllot summon
a jury. This court, transacting no business, is not attended
by any professional persons whatever.-l Rep. W. 1. C,
p. 47, 48.


Barri~ters and Attornies.
It is now required (prospectively) thut gentlemen ad-


mitted to practise as counsel in these courts, shall previ-
ously have been called to the bar in England. Itis neces-
sary for gentlemen applying to act as attornies 01' solici-
tors in this island, to produce a certificate of having served
a clerkship for five years either in England 01' the West
Indies, and a testimonial of good character must be signed
by two barristers, which is usually done by the attorney
and solicitor-general. They then receive a commission
from the governor. They are admitted and take the oath
in every comt in which they ¡ntend to practise. They do
not pay any fee, and are not restricted to any particular
nUlllber of clerks.-l Rep. W. I. C. p. 59, 60.




BARBADOS. 195


Debtors Absent, or Absconding~
An act to enable creditors to recover their just debts


out of the effects of their absent 01' absconding debtors.
-Hall's Laws, No. 202, 17th Mal'ch, 1753.


By this act it is provided that if any person being in-
debted, either absconds or departs, leaving behind him
01' her any outstanding debts. goods, 01' merchandise, all


,or any of the judgment creditors may attach such monies,
goods, and efFects in the hands of the person with whom
they may be found, by serving him with a summons in the
nature of a writ of scire facias, and creditors not having
obtained judgment may enter an action against the ab-
sconding or departed debtor, and serve the same on any
person indebted to him, 01' in whose hands there are any
of his goods or effects, which service shall be a warning
on the party served, not to pay the debtor absenting or
departing, at peril of his being afterwards obliged to pay
the plaintiff what he shall prove due. The act then pro-
vides, that the person served may appear to the sci. fa.
01' action, and show cause why the money, &c. should not
be condemned to the use of the plaintifl~ 01' he may plead
that he has no money, &c. in his hands, 01' any other
special matter. And that the plaintiff shall not have exe-
cution till he pnts in bail, conditioned that if the debtor
absconding or departed, shall appear in the said court
within ayear from the judgment, and discharge himself,
and p1'ove that he owed nothing, 01' not so much, the
money or goods, or their value, shall be forthcoming. For
other regulations on the subject the reader is referred to
the act itself. 'l'he following rema1'ks on this subject are
made by the commissioners appointed to inquire into the
civil and criminal administration of justice in the West
Indies. "These laws resemble foreign attachments in
London. They are a very powerful instrument in the
colonies, giving the local creditor a considerable advan-
tage over the foreign c1aimant j but it was complained that
they were found expensive. The costs in ordinary cases
are ascertained to be about Q8l. ] Os. By these mean s a
creditor may attach effects belonging to a defendant, who
has himself escaped. in whatever hands they are found.
No affidavit of the debt is required by the acto A cre-
ditor not having judgment must enter an action against


02




196 BARBADOS.
such absent 01' absconding debtor, and serve it on the
person in whose hands 01' power any effects are discovel'ed
to be, which has the effect of attaching them to the use of
the plaintiff: A judgment creditor serves a scire facias.
The plaintiff' gives security fol' restitution in case the
absent debtol' shall appear within ayear. The garnishee
pleading that he has nothing in his hands of the pIaintiff
to be attached, may be put to sweal' to the truth of his
pIe a, but then his oath will be conclusive of the fact.
The gal'nishee making defauIt is without relief either in
law 01' equity. (8)


Aliens and Foreigners.
" An Act to prohibit mastel'S of ships and other vessels


from landing aliens 01' foreigners in this island, without a
license for so doing from the Governor 01' commanuer-in
chief of this island, for the time being."-Hall, 134, passecl
~6thJune, 1717.


COLLECTION OF LAWS.


There are two printed collections of the acts of the
legislature of Barbados,-Hall's Laws, published in one
volume folio, 1764, and Moore's Laws, edited in 1801, in
one volume 8vo., both incomplete, and the former in a
remarkable degree inaccurate and dcfective. They were
published, however, under authority of the legislature, by
whom they are made evidencc. (9) Hall's Collection con-
tains the acts from 164·3 to 17G2; tbat of Moore, the acts
from 11th May, 1762, to 8th April, 1800. The later acts
of the ísland remaín in manuscript. The manuscript acts
not in print, are said to amount to ~47. The acts them-
selves are deposited in the Colonial Secretary's Office, and
copies are directed to be kept in tbe parísh churches.
Persons dcsirous of consulting them can only do so by
applying at the Secretary's Office, 01' to the Clerk of the
Vestry. A fce is paid by persons requiring a transcript.(I)


(8) 1 Rep. W. I. C. 42.
(9) Hall, No. 30; Moore, No. 67.


There had befóre been printed edi-
tions of the Laws by Hawlin, by


ZOllch, aud hv Salmon. See Prefacc
lo Hall's C(jll~ction.


(1) Rep, W. I. e, 6,7,123.


\,




197


GRENADA.


-


Grenada is one of the Caribbee Islands in the West
Indies, thirty leagues N. W. of Tobago. (1) It is com-
puted to be about twenty-four miles in length, aml twelve
miles in its greatest breadth, and eontaills about 80,000
aeres of land. It is divided into six parishes, Sto George,
Sto David, St. Andrew, Sto Patrick, Sto Mark, and Sto
John. Tbe capital town is tbat of Sto George, a name
conferred by an ordinance of Governor Melvill, made
soon after tbe cession of the island to Great Britain in
1763; the former appellation, during the dominion of the
French, having been Fort Royal. By the same ordinance
English names were given to all the several towns and
parishes, and tbe Frencb names were forbidden to be
thereafter u:¡;ed in any publie aets. (2)


There are several smaller islands in the vicinity of
Grellada, known by tbe general name of the Grenadines,
and supposed to be about 120 in number. But few of
these, bowever, are noweomprised in the Grenada govern-
mento By an arrangement which took place after tbe
peace of 1783, a line of division was drawn from east to
west between Cariacou and Union Island. The former of
these, and sorne smaller islands to the south of it, belong to
the Grenada government, while Union Island, and those
to tbe north, were annexed to the government of Sto Vin-
cent. (3) Botb these governments are now sllbordinate
to that of Barbados (see ante, 123.) Cariaeou, which was
the ehief dependency of Grenada, forms a seventh parish
in addition to the six already enumerated. (4)


(1) Brookes's Gazetteer.
(2) 1 B. Edwards, 383,385.
(3) Ib.381. Mr. Edwards does Ilot


Ilotice the authority under whirh this
divisioIl took place,but it \Vas probably


that of a proclamation dated (he 10th of
JaIluary, 1784, which is referred to in
an aet of the Grenada Assernhly of
(he 9th of March, 1734.


(4) Ibid.384.




198 GRENADA.


HISTORY AND CONSTITUTION.


Grenada was discoverecl by, and received its name from
Christophel' Columbus in 1498. It was then in the posses-
sion of the Charaibes, and these were left undisturbed by
the Spani.ards, who do not appear ever to have attem)?ted
to form a settlement.


In 1650, Uu Parquet, a Frenehman, invaded the island,
established a colony there, and exterminated the whole
race of its native possessors. The l'ights of the individual
who thus eHected the eonquest, were sold to another per-
son, by whom they were conveyed to the French West
India Company, whose eharter being abolished in 1674,
the island fl'om thenceforth became vested in the crown of
Franee.


In February, 176~, Grenada surl'endered on capitulation
to the British arms, and with its dependencies was formaIly
ceded to Great Britain by the definitive treaty of peace
at Paris, on the 10th of February, 1763. The chief stipu-
lations in favour of the inhabitants, as well by the treaty
as by the articles of capitulation, were these: l. It was
agl'eed that Grenada should continue to be governed by
its then present Jaws until His Majesty's further pleasure
was known. ~. As they would become by their surrender,
subjects of Great Britain, they were to enjoy their prQper-
ties and privileges, and pay taxes in like manner as the rest
of His Majesty's subjects of the other British Leeward
islands. 3. With respect to religious worship, they were
put on the same footing as the inhabitants of Canada, viz.
liberty was given them to exercise it according to the rites
of the Roman Church, as far as the laws of Great Britain
permitted. 4. Such of the inhabitants of Grenada as
chose to quit the island were at liberty to do so, and
eighteen months were allowed them to dispose of their
effects. (5)


By royal pl'Oclamation, bearing date 7th October, 1763,
it was declared that His Majesty had, by advice of His
Privy Council, granted letters patent under the great seal
to erect within the countries ceded by the Treaty of Paris,
four distinct governments, one of which was to be " the


(5) 1 B. Edw. 353 to 360; alld Campbell v. Hall. Cowp. 204.


\
\


JI




GRENADA. 199
government of Grenada, comprehending the island of that
name, together with the Grenadines and the islands of
Dominica, St. Vincent, and Tobago," and that His Ma-
jesty had in the letters-patent directed the governors of
such governments, " that so soon as the state and interests
of the said colonies should admit thereof, they should,
with advice and consent of the members of oul' Council,
summon and call General Assemblies within the said go-
vernments respectively in such manner and form as is used
and dil'ected in those colonies and provinces of America
which are under OUI' immediate government," and had also
" given power to the said Governors with consent of the
Councils und representatives of the people so to be sum-
moned, to make constitutions and ordain laws, statutes,
and ordinances fol' the public peace, welfare, and good
government of OUI' said colonics, and of the people and in-
habitants thereof, as near as may be agreeable to the laws
of England, amI under such reglllations and restrietions
as are used in other colonies;" and had also " given power
un del' OUl' great seal to the Govel'nol's of our said colo-
nies respectively, to erect and constitute, with advice of
our said Councils respeetively, courts of judicature and
public justice wíthín our said colonies, fol' the hearing and
determining all causes, as well criminal as civil, accol'ding
to law and equity, and as nea!' as may be agreeable to the
laws of England, &c." (6)


By another proclamation, bearing date 26 Mal'ch, 1764,
His Majesty n'cites that he had directed a survey and divi-
sion of the ceded islands, ancI had ordered them to be
divided into allotments as an invitation to purchasers to
come in and purchase upon the terms and conditions spe-
cified in that proclamation. (7)


By other letters-patent, under writ of privy seal, bear-
ing date the 9th of April, 1764, General Melvill was ap-
pointed Governor of Grenada, the Gl'enadines, Domi-
nica, St. Vincent, and Tobago, with power to summon, by
advice amI consent of his Council, General Assemblies in
those islands as soon as the situation of the islands would
admito And the Governor, by advice and consent of the
Council and Assembly, were to make laws which were "not


(6) This proclamation is prcfixed
to Smith's Laws of Grenada.


(7) Cúmpbtll v. Hall, Cowp. 204.


This proclamation will be found more
al large in Lofft's Reports, p. 661.




QOO GRENADA.
to be repugnant, but as near as might be agl'eeable to the
laws and statutes of the kingdom of Gl'eat Britain-" (8)


Under these lettel's-patent an Assembly was 6rst con-
vened in Grenada in 1765; (9) the legislative authority,
prior to that period, having been exercised by General
Melvill and his Counci}' (1)


As the question of the l'ight of the Crown to impase
byproclamation the four and a half per cent. duty after the
grant of a legislative Assembly had passed the great seal
was discussed with reference to this particular colony, it
may not be out of place now to give sorne account of the
proceeding.


The Crown, conceiving itself entitled by the terms of the
capitulation and treaty of peace, to levy in Grenada and
the other ceded colonies, the same four and a hall per
cent. duty on exported produce as is paid in the other
Leeward Caribbee Islands and at Barbados, issued let-
ters-patent bearing date 20th of July, 1764, directing that
from and after the 29th of September then next ensuing,
such duty should be raised and paid upon the export of
dead commodities from Grenada, in lieu of an customs and
duties hitherto collected under the authority ofthe French
king. -


This claim on the part of the Crown being disputed in
Grenada, an action was brought in the Court of King's
Bench in England to try its validity. (2) In defence of
the claim, it was urged that Grenada being a conquered
country, the King was invested with the power of putting
the inhabitants undel' what form of government he thought
best; that he might have granted them what terms of
capitulation, and concluded what articles of peace with
them he saw fit, and that the assurance to the inhabitants
of Grenada in the articles of capitulation granted, that they
should enjoy their properties and privileges in like man-
ner as other of His Majesty's subjects in the British Lee-
ward Islands, necessarily implied that they were bound to
submit to the same consequences of their being subjects
as wel'e submitted to by the inhabitants of those Íslands,


(8) Preamble lo Colonial Aet of
23d o( April, 1792, intilulecl, "Au
Act for Itegulating Elections." And
see Campbell v. Hall, Cowp. 207,
and Lofft's Rep. 662, w be,-e these
Jetters-paten! are more fully givcn.


(9) 1 Edwards' Hist. 361; COII'p.


207.
(1) Smith's Prefacc to Laws of


Grenada.
('2) See the Repor! of lhis case,


Campbell v. lIall, Cowp. 204, and tbe
speeial vcrdict tberein, Lotl't"s Itep.
657.


1




GRENADA. 201
one of which was the payment of the duty in question.
On thc other side it was contended that the letters-pa-
tent were void on two points. First, that even had they
been granted before the proclamation of the 7th of Octo-
ber, 1763, yet the King could not exercise such a legisla-
ti ve power over a conquered country. The second point
was, that even if the King had sufficient power before the
7th of October, 1763, to do such a legislative act, he had
divested himself of it by the two .proclamations, and the
commission to Govcrnor lVIelvill. And the Court of King's
Bench, after argument, were of opinion, on the second point,
"that by those proclamations and commission, the King had
immediately and irrecoverably granted to a11 who were 01'
should become inhabitants, 01' who had, 01' should acquire
property in the Island of Grenada, 01' more gene rally, to all
whom it might concern, that the subordinate legislation over
the island should be exercised by an Assembly with thc
consent of the Governor and Council, in like manner as the
other islands belonging to the King." (3) Lord Mansfield
accordingly pronounced the judgment of the court on this
ground against the Crown's claim; and the duty was thus
abolished not only in Grenada, but also in tbe ceded islands
of Dominica, Sto Vincent, and Tobago. It is observable,
however, that on the first point the court expressed an
opinion' favourable to the Crown, and held that prior to
the proclamation of October, 1763, Grenada, as a conquered
country, was liable to the imposition of taxes by the sole
authority of the King. His lordship referred to. the re-
ports made to the King by attorney and solicitor-general
y orke and Wearg, in 1722, in favour of that opinion.
The principIe had been discussed and decided in a similar
manner on a previous occasion. By the instructions given
to Colonel Codrington, the Governor of Sto Christopher's,
it seems that he was ordered to levy the four and a half
per cent. duty on the whole island, un del' the authority of
the act that had granted it in respect of that part of the
island belonging to the English when the act was passed.
The question of the right to do this was submitted in
1704, to the consideration of the attorney-general Northey,
who reported "that the officers of the English part of Sto
Christopher's had no authority, by virtue of the plantation


(3) Campbell y. Hall, Cowp. 213.




GRENADA.


aet made thel'e fol' the foul' and a halfper eent. on goods,
to levy the same on goods exported from that part of St.
Christopher's lately gained by eonquest from the French,
that law extending only to such part of the island as be-
longed to England when the law was mane j" but he added,
" her Majesty may, if she shall be so pleased, under the
great seal of England, direct amI command that the Iike
duty be levied on goods exported f!'Om the conquered part,
and that command will be a law there, her Majesty by her
prerogative being enabled to make laws that will bind
place s obtained by conquest, and aH that shall inhabit
therein." (4) The prerogative of the King, before the date
ofthe proclamation of October, was clear j but by that pro-
clamation, followed up by his commission to Governor
Melvill, he divested himself of the right to exercise it. To
returo to the subject of the transactions in the colony.


By one of the ordinances of Governor Melvill and his
Council, bearing date 9th of March, 1765, ann made ap-
parently before the legislative power of the assembly had
come into operation, Courts of Common Pleas and of Error
were established in this island. The earliest act in Mr.
Smith's collection is under date ~Dth N ovember, 1766, and
several other acts were passed in that and the following
year, and among others, an act under date of 14·th
October, 1767, for establishing Courts of Common
Pleas, Error, King's Bench, and Grand Sesions, &c. (5)
But, "from the papers extant in the Plantation Office
in England, it appears that both General Melvill and
the govemment were much dissatisfied with the 6rst
Assembly, the Governor having hastily dissolved them
at the close of the year 1767, while the Privy Council
disallowed 6ve of their principal acts." And after the
14th of October, 1767, it seems that " no legislative pro-
ceedings took place until the year 1769."


"On the 13th of December, 1768, a proclamation
issued, reciting a variety of regulations for the purpose of
electing amI calling together the Assembly of Grenada.
In pursuance of this p!'Oclamation the legislature was as-
sembled early in 1769 j" and from this period to N ovem-
ber, 1778, various acts were passed, among which was one
act of the 3d of March, 1770, (6) for explaining and


(4) 1 Chal. Op. 141, and on [he
subject of the 4! per cent. duties, see
ante 50, 51, n.


(5) Smith's First Table, prefixed
to the Laws of Grellada.


(6) Smith'sPreface, xi. First Table,
xvi.


: I
\ .


\




GRENADA. 203
amending the former act for establishing Courts of Com-
mon Pleas, &c.


On the fourth of July, 1779, Grenada was captured by
the arms of France, but was restored (with the Grena-
dines) to Great Britain by the general pacification which
took place in January, 1783; (7) and the English govern-
ment was re-established there early in the year 1784 under
GenerallVIathew, (8) who was sent out as Governor of
"Gl"enada and the Grenadines Iying to the southward of
the Island of Cariacou, including that island," (9) which
has, until very lately, continued to be the style of the Gre-
nada government.


On the 16th of March, 1784, an act passed the Gre-
nada legislature intituled "An Act for removing doubts
with respect to the laws which are to be deemed in force
in those islands upon their restitution to the Crown of Great
Britain." This act recites, that doubts might arise whether
and how far the laws which were in force at the time of
the capture by the French in 1779, " were absolutely an-
nihílated 01' only suspended during the continuance of the
war, so as to revive again" by the restoration to the Crown
of Great Britain, and proceeds to enact "that aH such
parts of the common law of England, and aH and every
such parts of the statutes 01' acts of parliament as were in
force and binding in Grenada and the Grenadines, whilst
the same were heretofore a part of the British dominions,
are hereby declared, and the same shaH be in aH courts
and other place s held and allowed, to be equaHy in force
and binding within the islands of this government, and so
to have been ever since the restoration of Grenada to the
crown of Great Britain as aforesaid." And with respect
to the colonial acts passed while the island was formerly
under the King's dominion, it revives and declares in force
certain of those acts therein enumerated; enacts by
another clause, that certain others shall be in force only till
further regulations made, and provides that "aH other
acts at any time heretofore passed in Grenada, and not
mentioned in eitber of the two preceding clauses, shaH be
deemed expired."


(7) Prramble lo Grenada Act,
16tb of Mal'ch, 1784; 1 B. Edw.
376 to 380.


(8) Smith's Preface, ix.


(9) Grenada Act, 20th of Febru-
ary, 1784 ; Smitb's First Table, xxiii.
and see Grenada Act, 9tb of MaTch,
1784. See ante, 197, and n. (3).




~04 GRENADA.
Acts were afterwards passed at different periods for re-


establishing the different courts of justice. Among these
need only be noticed an act under date ~7th of March,
1784, intituled "An Act for establishing a court for hear-
ing and determining errors, or writs of error, to be brought
from the judgment of the Court of Common Pleas or
Exchequer, and for directing the manner of proceeding in
such Court of Errors;" an act under date of 23d De-
cember, 1790, intituled " An Act for re-establishing a
Court of Common Pleas and a Court ofComplaints, &c.";
an act of '1th of October, 1800, intituled " An Act for
establishing a Supreme Court of Judicature, and uniting
therein the jurisdictions of the several Courts of King's
Bench and Grand Sessions of the Peace and Common
Pleas heretofore established in this island;" and an act
of 26th of January, 1801, intituled "An Act to alter and
amend an act therein mentioned for establishing a Court
for hearing and determining errors so far as the same re-
lates to the numbel' of justices necessary to compose the
said court." These four acts are aH mentioned by Mr.
Smith as in force. (1) That of 4th of October, 1800,
(No. 87,) consolidates in one " Supreme Court of Judica-
ture" an the jurisdictions civil ap.d criminal, vested in the
King's Bench, Common Pleas, and Exchequer in Eng-
land, (~) except the jurisdiction of the English Common
Pleas as to fine and recoveJ'y, and the equitable jurisdic-
tion of the English Court of Exchequer. (3)


Since the re-establishment of the English dominion in
1784, this island, with its dependencies, has been governed
(according to the usual method) under commissions granted
by the crown to the successive Governors, with accom-
panying instructions, and the legislative power has con-
tinued to be vested in the Governor and Council and the
House of Assembly.


The Governor presides solely in the Courts of Chancery
and Ordinary. His salary is 3200l. currency per annum,
which is raised by a poll-tax on aH salaries, and it is the


(1) Smith's Second Table, xlvii.
(~) See clause 2 of the Aet, 1st


Rep. W. I. C. 102; Smith's Seeond
Table, xlvii.
. (3) 1 Rep. W. 1. C. 102. Will!


respeet to the Court oi Chancery in
Ihis island, it derives ils authorily
from the proclamation of 1763, and
the Governor's eommissioll.-lstRep .
100.




GRENADA. 9105
practice in Grenada to pass a Salary Bill on the arrival of
every new Governor, to continue during his government.
In all cases of absenee beyond twelve months, the salary
ceases and determines.


The Couneil consists of twelve members, and the
Assembly of twenty-six. A freehold, 01' life estate of
fifty acres, is a qualification to sit as a representative
for the parishes, and a freehold, 01' life estate in 50t. house
rent in St. George, qualifies a representative for the town.
An estate of ten acres in fee 01' for life, or a rent of lOt.
in any of the out towns, gives a vote for the representa-
tives of each parish respectively, anel a rent of 201. per
annum issuing out of any freehold 01' life estate in the town
of Sto George, gives a vote for a representative for the
town. (4)


Ordinances.
Eight ordinances fol' thc govermnent of this island are


stated to have be en issued by General Melville (the first
English governor) and the General Council, bctwcen the
28th of July, 1765, and the 12th of April, 1766; of which
tltree related to the government of slaves; tltree to the
establishment of courts of justice (on the English model);
one to the collecting of taxes, and one regulated the elec-
tion of members of the General Assembly.


COLLECTION OF LA WS.


There is a eolleetion of the laws of Grenada from the
year 1763 to the year 1805, edited by MI'. George Smith,
foI'mcrly Chief Justiee, and an aet of Mareh 15th, 1809,
" making the printed eolleetion of the laws of Grenada,
lately published by the chief justiee of this eolony, legal
evidenee in aH eOUl'ts within these islands." Thel'e are
also two supplements of laws, eolleeted and printcd at
subsequent times, eoming down to the 4th of Mareh,
1819, and in 1825 there wel'e about twenty aets remaining
in manusel'ipt.-lst Rep. 'V. I. C. p. 93.


By an Act of Assembly of 16th September, 1807, after
reeiting that some of the aets of these islands being written
upon papel' had becn warn out and obliterated, and others
had lost the gl'eat se al of the eolany, by whieh they wcre
authentieated, by reasan whereof their validity might be-
-----~~-- ------------


(4) 1 B. Edw. 388.




206 GRENADA.
come questionable, it is enacted, that every act made since
18th July, 1805, when General Maitland assumed the
government, and all others thereafter to be made, should
be fairly entered arrd recorded in the secretary's office, in
a book to be kept for that purpose, within one month
after publication, under a penalty of 1'100; that such
entry should be compared with the original, and when
duly certified as correct by the President of the Council,
&c., should be received in evidence in al! courts in the
islands. And that all procIarnations to be thereafter made
should be entered and kept in like manner.


GENERAL LAW OF THE COLONY. (5)
The Attorney-General of Grenada, on his exarnination


underthe late commission fol' inquiry into the administration
of justice in the West ludies, says that Acts of Parliament
of Great Britain passed before 1763 (subject of course to
the usual qualification of their being applicable in their
nature) bind this colon y, but none passed since; unless
the colony is in sorne manner designated. (6)


We have aIread y had occasion to notice the procIama-
tion of 1763, by which it appears that His Majesty had
authorized the erection of courts of justice for determining
causes, as well criminal as civil, as nearly as may be
agreeably to the laws of England; the letters-patent of
9th April, 1764, by which the Assembly is to make laws
" as nearly as may be agreeable to the laws and statutes of
Great Britain." W e have also noticed the subsequent
establishment of courts of justice, and the convention of
Houses of Assembly, in pursuance of these authorities, and
it has been shown that the Colonial Act of 16th March,
1784, declares that aH such parts of the common law of
England, and aIl Buch parts of the statutes and Acts of
Parliament as were in force in Grenada and the Grena-
dines before the capture by France, in 1779, were equalIy
in force sin ce their restoration. The concIusion from
these documents seems to be, that both the common and
statute law of England, as they existed in 1763, so far as in
their nature applicable to the colony, and so far as not


([» See Ihe rematk. (ante, p. 3
to 16) un the general topie, how far


the cololl¡es are subject to the laws of
the mother country.


(6) 1 Rep. W. l. C. 12'1.


t f I




GRENADA. ~07
altered by the Colonial Acts revived by the act of 1784,
or by those passed since, al'e now binding in Grenada.


" Although there is no law in Gl'enada," says Mr. Ed-
wards, "declaring an adoption of the laws of England,
yet it has always been the practice of the courts to con si-
der both the common and statute law of England to
extend to Grenada in all applicable cases not otherwise
provided for by particular laws of the island. So in like
manner the practice of the courts in Westminster Hall,
and authentic reports of adjudged cases there, are re-
sorted to when precedents and authorities are wanting in
the island." (7)


COURTS.


The courts established for the administration of civil
justice in this island are the Court of Chancery, the Su-
preme COUl't of Judicatul'e, the Court of Ol'dinary, an
Instance COUl't of Admiralty, a Court of Error, and the
Court-Merchant, established by No. 10, Smith's Laws,
but now become obsolete.


The courts established for the administration of crimi-
nal justice are the Supl'eme Court, in its character of
a Court of King's Beneh and Grand Sessions; the Ad-
miralty Sessions, and the Slave Court. There is no
Escheat Court in this island, but, in cases of escheat, a
commissionisissued as in England.-l Rep. W.I. C. p.lOO.


Court of CI/ancery.
The Court of Chancel'y in this island derives its autho-


rity from the King's proclamation in 1763, and the gover-
nor's commÍ.ssion. The Governor sits alone as Chancellor,
with authority similar to that of the sole Chancellors in
the other islands. The laws and rules are the same as in
England, exceptiJlg sorne alterations made by a Colonial
Act, No. ~9, and a few rules, laid down at different
times by the Court itself fol' its guidance 01' convenience.
The court sits whenever there is occasion. The business
consists chiefly of bilIs of foreclosure and questions as to
priority of incumbrances; and, byan act of the island, the
Court of Chancery of Grenada had jurisdiction given to


(7) 1 B. Edwards, 390.




208 GRl!:NADA.
it in cases where freedom was left by will, and the executor,
having assets neglected to manumit the slave.


The officers of the court are the same as in the other
islands. There is only one master. He is paid by fees,
an.d does not give security. He alone appoints a re-
celver.


A receiver of an estate gives security in double the
amount of one year's crop. This account ought to be
passed yearly before the master, and his salary paid only
on accounting.


Monies paid into court are sometimes remitted to Eng-
land and placed in the funds, sorne times retained in the
hands of the officer of the court. The master is allowed
2~ ~er cent. on receipt, and ~~ per cent. on payment of
momes.


Injunctíons are known to be granted in two cases-to
stay proceedings at law, and to restrain the shipment of
produce. An appeal líes from all orders of this court,
interlocutory and final, to His Majesty in Councíl, for
matters of the value of .1:500 and upwards, and a recogni-
zance is entered into by the appellant and two sureties in
.1:500. The respondent gives a security fixed by the
master, and then is allowed to take the benefit of the de-
cree below.


An absent plaintiff gives security for costs to the amount
of 1'40.-1 Rep. W. l. C. 100, 101.


1'he Supreme Court.


In this court are united (by an Act of the Island, No.
87,) the authority ofthe Court ofKing's Bench and Grand
Sessions (formel'ly established by an act, No. 30.) and the
jurisdiction of the Comt of Common Pleas, and Comt of
Complaint, (revived by an act, No. 62.) The Supreme
Court of Judicature, by virtue of thís consolidating act, is
composed of a chief justice (appointed from England) and
four assistant judgcs, is held six times in the year, and is
said to have all the jurisdiction of the COUl'ts of King's
Bench, Common Pleas, and Exchequer in England. It
does not, howevel', exel'cise the equitabIe jurisdiction of
the Court of Exchequer in England; and fines cannot be
levied 01' l'ecoveries suflered undel' its jurisdiction as a
Court of Common PIeas; but a deed, acknowIcdgcd be-
fare a judge of the Comt of Common Pleas in England 01'




GRENADA. 209
Ireland, or the colonies, will have, under No. 25, Smith's
Laws, the same operation as a .fine or recovery; as will
abo, under the marshal's sale, by el. 101 of No. 62, the
marshal's conveyance Qf an estate tail.


The court follows the rules and laws of the respective
courts in England, with a few rules laid down by the
diflerent Acts of Assembly, and by the judges at variolls
times. Clause 3 of lite COUl't Act, directs the- mode 01'
serving process on absent defendants, viz. nailing a
declaration on the court-house door. Persons who
have never been in the island are considered as ah-
sent defendants for such purpose (8) A power of
arrest is given and regulated by the Court Act. The
debt must amollnt to ,-f1O, except in case of transient
persons, and there must be an affidavit of the debt.
Arrests are alJowed in other cases upon a special order
from a judge. When a party is about to leave the island
the chief justice has allowed him to be arrested for un-
liquidated damages. In llncertain demands the judges in
conrt or at chambers, are empowered to moderate and
settle for what ¡;mm bail shalI be demanded. There are
no exemptions from arresto By clause 14 of No. 62, the
plaintiff is compelled to proceed with his action in six
days, or costs may be given for want of prosecution. The
attachment of debts is frequently resorted too The ex-
pense is abont .f:21. 4s. 3d. Depositions are used on
trials, as in the otber islands, and without affidavit tha t
the witness is still absent or unable to attend.


JIl1"ies.
The names of the jurors returned by the marshal are


written on tickets and put into a hat, and then a sufficient
number drawn out to compose two juries of twelve each.
Special jUfies are known in practice here.


Elecutions.
Executions are taken out,lodged, and suspended. By


clause 66 of the Court Act, tbey bind from the time they
are Iodged in the marshal's office, and he is bound to
minute the precise time of their delivery.


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


(8) Bu! judgment obtained on proceso 5erved ill tha! rnanner C~llllnt oe
enforced in England, see ante, p. 9".


p




GRENADi\.


Injunctions are frequent to stay executions, more so
than to stay proceedings.


Fees.-Costs.
There is atable of fees of the officers of tIJe court kept


in their respective offices. There is also atable of fees
of solicitors, as between party and party. Costs are taxed
as between party and party.-l Rep. W. I.C. 102, 103.


Complaint Court.
Actions, denominated complaints, are brought in this


island, under a provision of the Court Act, for sums not
exceeding .['10, and where the original cause of action, if
it have be en reduced to .::e1O, díd not exceed .::e30. The
comt is held before a single judge of the Supreme Court.
These triaIs do not occupy more than one day, and are
very speedily decided. Counsel or soIicitors are seldom
employed. The plaintiff and defendant in such cases
plead in person, and may both be put upon oath.-l Rep.
W. l. C.104.


Court olOrdinary.
The Governor, by virtue ofhis commission,is soIe judge


in the Comt of Ordinary, which is held at the court-house
whenever there is occasion. He has no assessor. Mar-
riages take place by banns in this island, as well as by
license from the Governor. There are no means of ob-
taining a divorce in this island, nor· any by which a \Vife
may obtain a separate maintenance.


The practice is to provea will though it relates only to
real estates.


Wills are returned to the parties proving them.
Costs ·are taxed, and an attachment, it is supposed,


might issue to enforce payment of tbem.
An appeal is said to lie to His Majesty in Council.-


1 Rep. W. I. C. 104.


, Court of Admil'alt!J.
This comt, in the opinion of the Attorney-General,


.'" derives its authority from the Act 7 & 8 'Vm. 3, c. ~?Z.




GRENADA. 211
The subjeets of its jurisdietion are matters of revenue."
It doubtless existed before the 7th & 8th Wm. 3, but
that aet enlarged its powers. The jurisdiction is exercised
only in the Instance Court. There is no Prize Court.
The judge is appointed by the Governor as Vice-Admiral.
In its (lecisions and practice the eourt follows partIy the law
and practice of the Court of Exchequer, and partIy of the
lnstance Court in England. For the statute 7 & 8 Wm.
3, ch. 22, is supposed by the Crown Officers of the island
to enable the Admiralty Court here to do whatever may
be done in the Court of Exchequer at home. Until
lately, the chief justice was judge of this court.-l Rep.
W.I. C.104.


Court qf Appeal and Error.
This court was established (under N os. 27 and 88


Smith's Laws,) for writs of error from the superior court,
aod from that court only. The judges are the governor
and three members of the council, who have not sat as
judges in the court below. The aet provides fol' security
from the plaintiff in error, or appellant. The appeal
must be brought within twenty years. (9) The proceedings
are not attended with much expense.


Appeals to His Majesty in Council are not frequent,
and are attended with considerable expense. The terms
are, gi ving security (according to No. 27, c1auses 18 & 19)
and the governor's instructions.-l Rep. "V. l. C. 104.


Criminal Jurisdiction of tIte Supreme Court.
This branch of the Supreme Court is held under the


acts (Nos. 30 and 87 Smith's Laws.) Whenever the
Attorney-General sees occasion, he applies for a eourt,
and that a grand jury may be summoned. The aet pro-
vides that no writ for a grand jury shall issue of course,
but ooIy by direetion of the court. In sueh case the mar-
ahal is commanded to summon thirty persons of the best
note, freeholders and inhabitants, to serve as grand-jurors,
and forty-eight persons to serve as petit jurors. Their
attendance is secured by fines of f: 10 and f:5. The


(9) This is the time stated, 1 Rep. W. I. C. 104-, 193. The period is
considerable.


p2




GRENADA.


pl'oceedings before trial, as to tlle warrant, apprehension,
examination, and commitment of prisoners, are precisely
the same as in England. Rccognizances amI deposition~
are retUl'Iled by the magistrates to the Crown office, and
by the Clerk of the Crown to the Attorney·GeneraJ, four
days before the sitting of the court, and the Attorncy-
General, when he thinks proper, frames the indictment.
The grand jury will not receive an indictment unless it is
signed by the Attorney-General, for which, on public
business, afee is allowed by the legislature.


Informations ex officio are sometimes filed by the
Attorney-General, and criminal informations are also
sometimes granted at the instan ce of a private person, as
in England.


This court follows the laws and rules of the criminal
courts in England, and a few prescrihed by acts of the
colony. The Attorney-General considers the common
law, as to crimes, :md a1l the criminal laws passed in
England before the charter of the island to have eftect
here.


The names of witnesses are indorsed on the bill by
the Attorney-General, out of court, before it goes to the
grand jury, hut the witnesses cannot be objected to before
the trial, nor until a bill is found. Counsel are allowed
to address the jury on behalf of pl'isoners in this court, ex-
pressly by an act of this island, ancl the Attorney-General
considers that, in the colonies, where the judges are not
lawyers, such an ad is particularly peopel'.


'fhe chief justice presides in tbis court, and sums up,
when present, if not, the senior assistant-judge .
. Indictments and pleas are drawn as in England, but


only filed, and 110t l11ade up as a record, except when
l1ecessarv.


Pl'Osecutors and witnesses are not allowed their ex-
penses and costs.-l Rep. ,Y. l. C. 104, 10.5.


Judges.
AH the judges llold thcir offices during pleasure. The


chief justice of the Suprcme Court is appointed from Eng-
land, by mandamus fi'om Bis l\Iajesty. He has a salary
of .BZ500 currency, established by an act of the colony,
ana al so fees, which according to a docket in the possession
of the sccretary, are said tu be about .B700 per alll1Um.




GRENADA. 213
The assistant-judges have no salary, and from curtesy


{lo nnt receive fees, except where they transact business
in the absence of the chief justice. It is said, however, to
be doubtful whethcr they have not the right. They are
appointed by the governor and council.


Attorney-General.
The Attorney-General in this island has no salal'Y. He


has an account with the legislature for fces for public
business.


Barri8ters and Attornies.
By a rule of court l'ecentIy l'emodelled, a pel'son keep-


lng twelve term8 at horne, 01', six at home and attending
during the sittings here lwo years (making twelve courts),
.may practise as counsel and attorney, the two characters
being blended in this island.


No Court of Quarter Sessions is held in this island fol'
the tri al of petty offences.-l Rep. 'V. I. C. 110.




( 214


STo VINCENT.


-


Sto Vincent is one of the Caribbee islands in the West
Indies, fifty-five miles west of Barbados. (1) It lies in
13° 10' 15" lato and 61° 30' 51" long. (9Z) It is twenty-
four miles in length and eighteen in breadth. It contains
about 84,000 acres, and comprises five parishes. The
capital is Kingston. (3) "The number of inhabitants
appears by the last returns to government," says Mr.
Edwards, "to be 1450 whites, and 11,853 negroes." (4)
There are several small islands dependent on the St. Vin-
cent government, the chief of which are Bequia, Union,
Canouane, and Mustique. (5)


HISTORY AND CONSTITUTION.


The Spaniards bestowed the name of St. Vincent
upon this island, because they discovered it upon the 2l2d
of January, which in their calander is Sto Vincent's day.
But it <loes not appear that they were ever, properly
speaking, in possession of it, the Indians being very nu-
merous here on account of its being the rendezvous of
their expeditions to the continent." (6)


It was included with Dominica and many other islands,
in a patent granted to James Hay, Earl of Carlisle, in the
first year of King Charles 1. (7)


In 167~, King Charles, by commission, appointed Lord
Willoughby Governor of Barbados, Sto Lucia, Sto Vin-
cent, and Dominica; (8) but it does not. appear that Sto
Vincent was ever settled or occupied under this commis-
sion. It seems to have remained in the exclusive posses-
sion of the Charaibes, its original owners.


(1) Brookes's Gazetteer.
(2) lntroductiun to Shepherd's


Practice.
(3) 1 Edwards, 4'26, ,127.
(4) lbid. 428.
(f1) Ibid,429.


(6) 1 Edwards (citingCampbell,)
410.


(7) Ibid, 407. See this patent
more fully noticed undcr (he tito
u Barbados."


(8) lbitl. 411, et ser¡,




STo VINCENT. 215
About the year 1675, eertain Afriean negroes being


wrecked on the coast of Bequia, were allowed by.the
Charaibes to settle themselves in St. Vincent, and after-
wards becoming very numerous, disputed and divided
with the native raee the possession of this island.' These
intruders were afterwards known by the name of the
Black Charaibes. (9) .


In 1723, the British made a fruitIess attempt to take
possession of this istand and of St. Lucia, by virtue of a
grant that had been made by George J. to the Duke of
Montague. (1)


St. Vincent afterwards continued to be the theatre of
savage hostilities between the negroes and the Charaibes,
in which the former pro ved ultimately victorious, and
nearly exterminated their opponents. (2)


The French had constantly opposed the attempts that
had be en made to reduce this and other islands under the
English dominion, and at length, by the treaty of Aix le
Chapelle in 1748, the English abandoned their preten-
sions, and St. Vincent, Dominica, Sto Lucia and Tobago,
were declared neutral. (3)


But afterwards, by the treaty of París, signed the 10th
of February, 1763, these pretensions were re-established,
and St. Vincent, Dominica, and Tobago, were assigned.
to Great Britain in full and perpetual sovereignty, (4)
the Charaibes not being once mentioned in the whole
transaction. (5) The proclamation of the 7th of October,
1763, the letters-patent of the 9th of April, 176t!<,by
which Representative Assemblies were granted to these
ceded islands, and theeontest consequent upon the at-
tempt afterwards made to impose the 4,~ per cent. duty on
them, have been already fully noticed in the account of
the colony of Grenada. To that account the reader is
referred.


A separate Legislative Assembly was in pursuance of
these authorities, summoned in each of the islands con-
stituting the general government. The Assembly of St.
Vincent was convened as earlyas 1767, the first act in the


(9) 1 Edwards, 411,412.
(1) Ibid, 414 lo 420.
(2) lbid. 420.
(3) lbid. 407, 408.


(4) This article oC Ihe trea!y \Vi!!
be found in Lofft's Rcporls, 1560.


(5) 1 Ed"ards, 409.




216 STo VIr;CENT.
printed eollection bearing uate on the 11th of July in that
year. -


'rhis aet makes mentíon of a Court of Common Pleas
as then existing in this island; and the next act, which is
under the same date, makes mention of Courts of General
Sessíons with criminal jurisdietion.


'rhe British government proceeded, after the acquisi-
tion of this colony in 1763, to grant amI sellIarge portions
of its territory, but the commissioners fuI' that purpose
were directed not to dispose till further instructions should
be given, of any su eh lands as were inhabited or claimed
by the Charaibes, and ufter some con test with these pe 0-
pIe, a treaty was concluded with them on the ~7th of Fe-
bruary, 1773, by which they acknowledged Bis Majesty
to be rightful sovereign of the isIand, and submitted them-
seIves to his Iaws as far as regarded aU their transactions
with his subjects. Anu on the other hand, they received a
portion of Iand for their residence, and permission to be
governed in their own quarters and in their intercourse
with each other, by their own customs. (6)


On the 19th June, ] 779, St. Vincent was captured by a
French force, but was restored to the dominion of Great
Britain by the pacitication of 1783. (7)


In this year, 01' the commencement of 1784,Edward
Lincoln, Esq. was by His Majesty's commission, un del' the
great se al, appointed "governor in chief over the islands
of St. Vincent, Bequia, and such oI' the islands caBed the
Grenadines, as lie to the northwan! of Carriacou in
America;" and this continued up to a recent period to be
the extent and style of the S1. Vincent government. 'rhe
commission wiII now oI' course be different, as a lieutenant-
govemor only will be appointed, the governor of Barba-
dos being the governor in chief of that island, and of
Grenada, Sto Vincent, and 'robago. (Se e ante, 1~3.)


At least as early as 1784, the legislative authority of Sto
Víncent was again exerá,ed (as before the French COI1-
quest) by the governor and couneil, and a representative
assembIy. and on the ~Zd of June in that year, an aet was
passed, whereby, after reciting the aboye commission, amI
that such of the Gl'enadines as lie to the nOl'thward of


(7) Ibid. 4~.5.




STo VINCENT. 217
Carriacou, were now included and made pal't of the Sto
Vincent govcrmnent, it is enacted th3.t "every law, act,
statute, and ordinance now in force in this island, sha1l,
and they are hereby declared to extend to and operate in
the said island of Bequia, and such other of the said
islands called the Grenadines as Iie to the northward of
Carriacou in America, such of them and so far as they
.al'e applicable to the same."


On the 15th March, 1786, an act of Assembly passed
for establishing Courts of King's Bench, Common Pleas,
and Error, and for the better advancement of justice in
tbe said IsIand of St. Vincent and the Island of Bequía,
and such other of the Grenadines as lie to the northward
of . Carriacou in America, and for rendering the former
proceedings of the Courts of Common PIcas and Error
valid, and for settling' certain fees." Thís act has since
been explained and amended by several othets. (8)


On thé 7th of Julv, 1786, an act of assembly passed
" for regulating the proceedings at elections, describing
who shall be deemed freeholders capable of electing and
being eIected representatives, and for erecting into a
pal'ish the Iands between the rivers Jambou and Byera,
and to enable the inhabitants thereof, and of the other
islands of Bequia, and such other of the Gl'enadines as
lie to the northward of Carriacou in America, to elect re-
presentatives to serve in the general assembly of this go-
vernment."


In 1795, an insurrection of the black Charaibes and
French settlel's took place in Sto Vincent's, which being
seconded by a French force. was not suppressed till after
asevere struggle. But in 1796, tbe enemy was dislodged
by a British force, and tranquillity restored. The Cha-
raibes, however, wel'e not allowed by our government to
remain, but were removed to the island of Rattan, in the
Bay of Honduras. (9)


On the 6th of November, 1807, an act passed fol'
establishing a Comt of Grand Sessions of the Peace, &c.


(8) See prinled Jaws, vol. '2, p.
41,80. 186. The Court of Chancery
i" Ihi. i.laud derives ils allthority frolll
Ihe ['ruelamaliun of 1763, ,Itld Ihe gu·


vernor's. comruission and illstructiolls.
!Id Rep. W. 1. C. 10.


(9) 4 Edwards, 4, H.




218 STo VINCENT.
and several aets have be en sinee passed to alter and
amend the same. (1)


Sinee the establishment of the British dominion in
1784, this island has eontinued to be governed in the
usual method, under commissions with aeeompanying in-
struetions issued by the Crown to the suecessive Gover-
nors, and the legislative authority has been vested in those
Governors, their Couneils, and the House of Assembly,
aceording to the ordinary form of colonial eonstitution.
" In the frame of its government and the adrninistration of
executive justiee," says MI'. Edwards, "St. Vineent's
aeems to differ in no respect from Grenada. The Council
consists of twelve members, the Assembly of seventeen.
The Governor's salary, exclusive of fees of offiee, is
GC~OOO sterling, of whieh <f1300 is a eharge upon the fund
arising from the duty of 4! per cent. The remaindel' is
by grant of the Assembly." (~)


The ehief justice is appointed fmm England, reeeives
His l\1ajesty's warrant under the privy seal, and his com-
mission passes under the great seal of the colony. He
holds his offiee during the King's pleasure and hio¡ own
residenee in the colony. A colonial salary of f:~OOO eur-
reney per annum is settled on the present ehief justiee, so
long as he shall fill the office and reside in the island.
He is also entitled, in addition to his salary, to eertain re-
gulated fees. (3)


Thc puisne or assistant-judges are appointed by the
Governor. They have no salaries, but sorne fees. They
hold their places during pleasure. (4}


There is an Attorney-General, who is paid by a colonial
salary of f:500 curreney, but this sum is said by the act to
be allowed in lieu of fees, w hieh are paid into the treasury,
for conducting the business of the sessions, and drawing
the aets of the legislature, which it is his duty to prepare
on the requisition of any member. (5)


Barristers and Attornies.
" It is usual in this island for the same persons to aet as


(1) Prinled Law., vol. 2, p. 76,
115.


(2) 1 Edw. 428. The statement
of the number of members composillg
the House of As.embly in Sto Vino
cent'", secms to be a mistakc. By Ihe
Elcctioll Acl uf 1786, lhe lIumber ¡.


lixed al nineleen, whereof eleven are a
qllorum. And nineteen is the numo
ber mentloned in Ihe Inlroduction to
Shepherd 's Practice.


(3) 2 Rep. W. l. C. 21,50.
(4) lhid. Zl, 51.
(5) lbid.22.


'~l
;




STo VINCENT. 219
counsel, attorney, solicitor, and proctor. It is not required
that they should have be en called to the bar in England."
In the Court of King's Bench and Common Pleas the rule
is that no person is to be admitted unless he has ben en-
tered in one of the Inns of Court in England 01' lrelan4.
and shall produce a certificate of having kept twelve
terms. But this rule has been occasionally dispensed with.
On production of a certificate that the applicant is an
English barrister, the oaths are administered to him as of
comse. (6)


COLLECTION OF LAWS.


"!vir. Wylly, the chief justice, has stated that he supposes
all the acts extant and in force to be in print. Two vo-
lumes of them have been published, and a third volume
had proceeded in 1825 as far as page ~O. (7) But it is
doubtful whether they are complete. They begin, how-
ever, from 1767, when the House of Assembly was first
established.


GENERAL LAW OF THE COLONY. (8)
The laws in force in this island are stated to be, besides


their own Acts of Assembly, so much of the Iaws of Eng-
land, adapted to the circumstances of the colony, as
existed prior to the procIamation of 7th October, 1763;
and such Acts of Parliament passed sin ce, as were ex-
pressly decIared, 01' manifestIy in tended to apply to this
island, as to the colonies in general. (9)


COURTS.


The courts established in this island for the administra-
tion of civil justice, are the Court of Chancery, the Court
of King's Bench and Common PIe as, and, as a branch of
the superior comt the Comt of Complaints, the Court of
Ordinary, the Court of Vice-Admiralty, and the Court of
Error. There is no Comt of Exchequer in this island.
" A very few words by way of amendment," said the chief
justice, "might be sufficient to give to the Comt of King's
.Bench and Common PIeas all the necessary powers of a
Court of Exchequer."


(6) 2 W.!. C. 54.
(7) Ibid. 5, 10.
(8) See the relDarks, 1'. 3 lo 16,


on (he general topie how far (he co·


foníes are subject to lile faw oftlle mo-
ther country.


(9) 1 Rep. W. lo C. 5. And see,
Illlder title "C,'cnada," lhe remarks
"JI (he ge!lt'rallaw ofthatcolollY,




STo VINCENT.


Court Of Cltancery.
This eourt derives its authority from the pmclamation


of 1 i63, and the governor's eommission ando instructions.
The governor is sole chancellor.
The court has three masters (amI examiners) appointed


by the ehancellor. The Colonial Seeretaryacts as Regis-
trar, and the Pl'ovost ~larshal as Sel:jeant-at-Arms.


The court is governed by the law and practice of the
Court of Chancery in England, and by its own rules.
When the latter are silent, the practice of the court in
England uniformly prevails.


Aeeording to a book of practice, published by Mr.
Shepherd,of the colonial bar, and recognized as authority
in the eolony, a defendant is entitled to three orders for
time, the first for six weeks, the second for four, and the
third for two weeks, if he is resident within the jurisdic-
tion. If he resides in the other eolonies, he may have
one order only fol' three months. Ifhe resides in Europe,
the time is extended to six months, with liberty to add
three more on motion, and on consenting to sequestratioll
if an answel' is not put in within the time.


A reeeive¡' is appointed by tlle court, amI gives security
in a recognizunce before the master, in a sum specified by
the court.


Costs are taxed by the master, according to the usual
form in Englana.


An appeallies from this court to His Majesty in Coun-
eil, and must be mude within fourteen days, and security
i8 given on recognizancc before the master effectually tu
prosecute the same. A copy of the papers authenticated
by the officer of the court should be taken.-2 Rep. 10
to 12.


Court of King's Bcnclt and Common PIcas.
This. the supreme court of common law, was esta-


blished by the Comt Act, which passed in 1786, and is
said to possess aH the combined pOWCl"S of the Courts of
King's Bench and Common Pleas in England.


The pleadings subsequent to the declaratiol1 (ancI 111at-
ters are often mal1aged without a deduration) are ore tenus.
When the plaintifl' is absent, a powcr of attorney from




STo V[~CE"T.


him to some pel'son in the island, dulypl'oved amI re-
corded in the secretary's office, must be produced, if
required, before the cause can proceed to trial 01' judg-
mento Foreign powel's of attorney, under a notarial seaI,
and recorded, are sufficient. The person acting becomes
liable for costs.


Process is served as in the other islands, by hammer
and nail, in the case of defendant absentees, who have no
attorney upon record, (see ante, p. 93 and n. 9.)


Depositionsare r:,ceivable in evidence under the same
circumstances as in the other islands, but they do not
seem to be taken with equal care, and there never .is
sufficient circumspection. A summons left at the dwelling-
}lOuse, even qf tite counsel, entitles the party to proceed
in the absence of his opponent, and have the deposition
taken ex parte.


A general venire issues, and tltirty-six' persons are
summoned; of these two juries (called thejirst and second
jury) are formed, and those juries are sworri, "once for
all, fol' the COUl't, and fol' the trial of aH the causes on the
list."


The party against whom a verdict has been obtained,
has time until the next court, to move in arrest of judg-
ment, 01' fol' a new triaL


To the judgmel1t an affidavit is al1nexed, that the sum
is due, which is lodged with the secretary, who enters the
day, minute, and hour of filing it in the docket-book; and'
the judgment is bil1Jing on lands and sIaves, and aH pro-
perty annexed to the freehold from that time. .


The form of the writ of execution and its operation are
the same as in the othcr islands.


Goods are bound in this island from the teste of the
writ, and not from its delivery to the marshal. Executions
are taken out and used as securities, as in the othel'
isIands, and though l'eturnable to thé secretary's office,'
at the end of thirty days, are allowed to be levied without
suing out a scire facias, at any distance of time. Of real
property the marshal executesa conveyance by lease and
release, 01' often by feoffinent (without livery) duly ac-
knowledged and recorded in the registrar's office, either to
tbe purchaser, or to a trustee for the purpose of settle-
ment or baJTing dower. Personal pl'Opel'ty Ís transférred
by the marshal's certifica te, 01' by the sale only.




STo VINCENT.


The fees, both of the judges and offieers of the eourts,
are regulated by tables annexed to the aets.


Every verdict in this island carrÍes costs, "meaning,"
(says Mr. Shepherd, in his book on praetice,) " fuU costs."
The common practice respecting exeeutors and adminis-
trators is here extended, as they are generally subjeet to
costs on a verdict passing against them." Costs are always
taxed by the prothonotary. No costs can be levied with-
out having previously been taxed.


Court cif Complaints.
The Complaint Court (a braneh of the superior court)


in this island was established in 1786, by the 11th section
of the Court Act.


lts jurisdiction is limited to actions under the value of
.:eZO curreney.


Proceedings In this court are ore tenus.-2 Rep. W.
l. C. 10, 18.


Courtof Ordinary.
A will in this island requires the same formality in its


execution as in England. "For," says Mr. Shepherd,
" although the legislature of the island of Grenada thought
it necessary by a declaratory act to confirm the Statute of
Frauds in the colony, that aet has always, with the rest
of the Statute Book to 1763, (excepting laws having a local
Ol' political operation,) been considered as the law of the
island."


Wills are proved by affidavit made before the governor
as Ordinary, by one of the subserihing witnesses, &c.
Letters tcstamentary are issued by the registrar, and the
will is entered in the books kept far that pllrpose, " hut
the original is not delivered out to the party as in case of
deeds."-2 Rep. W. 1. C. 18.


Court of Admiralty.
There is no Prize Court in this ¡sland. The course of


proceeding in the lnstance Court is by information to be
filed by the Registrar, within ten days after the seizure.
The monitions are issued to the marshal, who posts a copy
at the custom-house, court-house, and principal tavern.
An appea] did lie from a judgment in this COl1rt to the




STo VINCENT. 223
High Court of Admiralty in England, 2 Rep. W. l. C.
18, 19; but now, by the Privy Council Act, it Hes to tbe
Privy Council.-See tbe Privy Council Bill, post.


Court cif Appeal and Error.
Great complaints were made, from various quarters, of


the vicious 'constitution of this court. "1 presume," ob-
served tbe chief justice, "no judge of the court, a quo, is
to sit in this court; to constitute wbich the Governor and
at least three members of Council are necessary."-" The
judges of the court below," says Mr. Shepherd, "if mem-
bers of Council, may give their reasons for their former
judgments, but not 'vote."-2 Rep. W. l. C. 19.


Criminal Court.-Grand Sessions.
This court is constituted by an Act of Assembly, and is


beld on tbe second Tuesday in the months of February,
June, and October, every year.


The members of Council are vi"tute officii, judges of
tbis court; a circumstance which we heard lamented.


The court is further composed of the lieutenant-gover-
nor, the justices of the Court of King's Bench and Com-
mon PIeas, snd the judge-surrogate of the Court of Vice-
Admiralty. The judges sit by virtue of the act, without
any further writ, commission, or authority.


The attendance of witllesses is secured by subprena ;
but, even in criminal prosecutions in this island, deposi-
tions of witnesses may be taken, in case of sickness or
intended departure from the colony, before the trial, and
are declared to be admissibIe in evidence, under the same
circumstances as in civil cases.


When a bill has be en ignored, or when the prisoner has
been acquitted, or is discharged by proclamation, and the
court certify the prosecution to have be en frivolous,
vexatious, or malicious, the prosecutor is liable to the pay-
ment of costs, which are to be taxed by the Clerk of the
Crown; and in all cases where the prisoner is unable to
pay his fees, the court may direct them to be paid out of
the treasury.


The court has a power to order transportation of
offenders to some other part of the world, at their dis-
cl'etion.




~ft(i. . •• ;'9f.A;;Z. ".~S.=b%ii4f2l! .. 4 .. ,..:;q;;AQ- .... :;U< ~.' l. > 1 •• $.4 ,#4,. 4C <


STo VINCENT.


Judges.
. .


Thc cbief justice receives His Majesty's warrant under
tbe privy seal of the colony. He holds his office during
the King's pleasure and bis residence in the colony. The
Governor has the appointment of the assistant justices.
AH the judges, holding their offices dllring pleasllre, are
}'emovable by the authority of the Crown, and may be sus-
pended by the Governor or Commander-in-Chief, byadvice
of the Council.-2 Rep. 22, 5i.


Pt'ovosl ]}larsltal.
The provost marshal general is here, as in the other


islands, the executive officer of a1l the courts. The chief
justice said, "he claims a right of acting as marshal in the
Court of Admira1ty."


Coroner.


There is one coroner in this island, appointed by the
Governor. The inquisitions are returned and filed in the
office of the clerk of the crown, and the coroner is bOllnd
to make bis return six days befol'e the sessions.-2 Rep.
W. J, C. p. }l3.


Admiralty Sessioll s.
There is no commission sent out to this island fol' hold-


ing a Court of Admiralty Sessions.-~ Rep. ~4.




( !225 )


TOBAGO.


-


Tobago is one of the Caribbee islands in the West
Indies. It is the most southerly of them, and líes in lato
11 o 10' north, amI 590 40' long. west from London-
about forty leagues south by west from Barbados, thirty~
five S. E. from St. Vincent's, twenty S. E. from Grenada.A
twelve N. E. from Trinidad, aneI between thirty and forty
N. E. from the Spanish Main. It is somewhat more than
thirty miles in Iength from N. E. to S. W.; between eight
and nine in breadth; and from twenty-three to twenty-five
leagues in circumfel'ence. (1)


It is divided into seven districts called divisions, viz.
North East, Queen's Bay, Great River, CourIand Bay,
Barbados Bay, Rockly, and Sandy Point divisions. It has
an equal number of parishes, which are named Sto An~
drew's, Sto George's, Sto Mary's, Sto Paul's, Sto John's, Sto
David's, and Sto Patrick's. There are two towns, George
Town, and Scarboyough, the latter of which is the capi.
tal. (!2)


HlSTORY AND CONSTITUTION.


This island was first discovered by Columbus, from
whom it received its name. It was then inhabited by a
native race of Indians, who being harassed in war by a
hostile tribe on the continent, afterwards abandoned their
homes and took shelter in Sto Vince.nt's. (3)


The English visited this island very early, Sir Robert
Dudley having becn there in the reign of Quef'n Elizabeth.
William, Earl of Pembroke and Montgomery, is said to
have obtained a grant of this and two other small islands
from Charles l. in 1628; but it does not appear that he
took any steps to avail himself of the donation; and after
continuing many years uninhabited, the island feH into the


(1) Encyclopredia Britannica; 4
Ed.275. In the lalter work it is said
that it is Iwenty-fhe miles lo the lIOl'tl¡
of Trinidad, Ihat the length is thirl)'.


Iwo miles and the greatest breadth
thirteen.


(2) 4 Edwards, 287.
(3) 1 Ibid. 276.


Q




TOBAGO.


possession of the Dutch, who founded a colony there.
But another settlement was soon afterwards attempted by
the Duke of Courlan~, whose c1aims being contested by
the States-General, thc duke entered into a treaty with
Charles n. uateu 17th November, 1664, by which he put
himself under the protection of that monarch, and con-
sented to hold the island of him upon certain conditions.


Nothing, however, was done in pursuance of that treaty,
and Tobago remained in possession of the Dutch. That
natíon was, in 1677, (lriven out by the French, and the
islarid once more became uninhabited, the conquerors not
chusing to cstablish themselves thel'e.


The demise of the last of the Dukes of Coudand, of the
house of Kettler, which took place in 1737, put an end to
an claims from that quarter; and by the treaty of Aix-la-
Chapelle, 1748, Tobago was, with the islands of St. Vin-
cent, Dominica, and St. Lucia, declared neutral. However,
.by the treaty of París, in 1763, Tobago, wíth Sto Vincent's
Grenada, amI Dominica, was ceded in full sovereignty to
the British crown, The English commenced the coloni-
zation of it in 1765. (4)


By royal proclamation. bearing date 7th October, 1763,
it was declared that His Majesty had, by advíce of his
Privy Councíl, granted letters-patent under the great se al
erecting wíthín the countries ceded by the treaty of París
four distinct govel'llments, one of which was to be "the
Government of Grenada, comprehending the island of that
name, togethel' with the Grenadines, and the islands of
Dominica, Sto Vincent's. and Tobago," and that His Ma-
jestyhad directed the governors of such govel'llments to
summon General Assemblies in the same. (5)


In pursuance of the aboye proclamation, a separate Le-
gislative Assembly was convened in each of the principal
'islands, constituting the general government. That of
'Tobago was first convened in 1768-the Iegislative au-
thority from 1763 to 1768 having been exercised by a
Governor and Council only. In 1769 a Court of Common
Pleas and Court of Error were established by Act of
Assembly, but were afterwards superseded by an Act of
1775, providing á new establishment of Courts' of Common


(4) Enc:;-c1opredi" Britannica and letters-patent noticed more fully in
Edwards, ubi .up. 276, 280. the accollnt of Grenada.


(5) Sce tbis proclamation and the




TOBAGO.


Pleas, Error, King's Beneh, and Grand Sessions; and in
the same yeal' was passed an aet for establishing a Comt
of Chaneery.


In 1781 Tobago was taken by the Freneh, (the capitu-
lation having been signed on the 1st day of June in that
year,) and by the treaty of 1783, it was ceded to France.
Few Frenchmen, however, establisheel themselves there,
anel the original eolonists are said to have eontinued to
chel'ish a strong attaehment to the English govern-
mento (6)


On the 15th of April, 1793, the island was retaken by
the British arms, and the small number of Freneh settlers
that it eontained soon afterwards quitted the colony. (7)


In 1794, during the administration of Governor Ricketts,
this island is saiel "to have received a constitution from
Englalld." "But the charter of the constitution is under-
stood to be now lost." (8) However, its general nature
appears by thc preamble of thc Act of Assembly, passed
21st February, 1794. This aet recites that by the con-
quest of 15th April, 1793, "His Majesty aequired a right
to establish such government, and to impose such laws on
the inhabitants of the saiel island, as might be most agree-
able to his royal will and pleasure;" and "had been
graciously pleased to declare it to be his royal will and
pleasure that the government of the said island should be
a separate government, aml eonsist of a eaptain-general
and governor-in-ehief, a lieutenant-governor 01' other eom-
mander-in-ehief of thc said island, for the time being, a
Couneil appointed by His Majesty, and a House of Re-
presenta ti ves of the inhabitants of the said island, under
the denomination of a General Assembly;" and that a
General Asscmbly had aeeordingly been eh osen and con-
vened. The aet then proeeeds to recite that "by the
eonquest of the island and thc final establishment of the
government thereof, as aforesaid, an laws heretofore en-
acted by former lcgislatures of this island, ceased to be in
force," but it goes on to revive the aet of 1775, aboye me n-
tioncd, for establishing Courts of Common Pleas, Error,
Kíng's Beneh, aml Grand Sessions; and also a former


(6) Encyclopredia Britannica; 4
Edwards, 285, 287.


(7) Encyclopredia Britannica; 4
Edwards, 286; 3d voi. p. 436, where


the capture is said to have been on
the 17th April.


(8) 1 Rep. W. l. C. 71.


Q2




TOBAGO.


act fol' establishing a Registrar's Office; and pl'ovidcs
that the records belonging to the former Registrar's Office
shall be lodged in the new one. lt has a like provision
also with respect to the records of the courts of justice,
which are transferred to the new courts respectively. (9)


In 1802 Tobago was ceded to France by the treaty of
Amiens, but in July, 1803, was retaken by a British force,
and was ultimately ceded to Great Britain by the treaty
ofPal'is in 1814. (1)


Since this, its last restol'ation to the British Crown,
the island enjoyed up to a recent period, as it did from
1794 to 180:2, a separate and distinct government uncon·
nected with any othel' colony, and possessed the same
legislative and judicial constitutions as had belonged to
it during that pel'iod. lt now forms part of the general
government of Barbados, but it is believed will still con-
tinue to have, as before, its separate House of Assembly,
and separate judicial establishments.-See ante, 1:23, 124.


COLLECTION OF LA WS.


There is no complete printed edition, nor any compilation
bv authority, of the laws of Tobago. The originals are
d~posited in the Secretal'y's Office, where theymay be
consulted on payment of afee. (:2)


A collection, however, of the Acts of Assembly, passed
from 1768 to 1775, inclusive, was printed in London in
1776, and many of the more recent acts are a]so in print.
Copies of the ads of this, as of other co]onies, are preserved
in this country in the office of the Secretary of State for
the Colonies.


GENERAL LAWS OF THE COLONY.(3)


Upon the examination of the law officers of Tobago,
under the late commission fol' inquiry into the administra-


(9) The acl has wOI'ds which seem
sufficieutly lo revive also (he jnrisnic-
tious of (he Cour(s of Chancel'V, Ad-
miralty, and Ordinary. TIut ibcre i.
no express revival of (he aet of 1775,
eslablishing (he Coort of Chancery.
11 ¡s, how~ver, understood lo have
becn revived by an ael passed in Fe-


brllary,1794. 1 Rcp. W. 1. C.75,
76.


(1) 4 Edwards, 287; 1 Rep. W.
1. C. 124.


(2) 1 Rep. W. l. C. 71,122.
(3) See the remarks (ante, p. ::;


lo 16,) UII (he general tapic IIOW fa,'
(be colonies are subjcct to (he law of
the mothcr eouII(ry.




TOBAGO.


tion of justice in the West Indies, the chief justice thus
expresses himself, "The common law operated in an cases
not affected by colonial statutes. It has beenconsidered
that when we received an English constitution, in the time
of Mr. Ricketts, we took with it an the act& of Great Bri-
tain, adapted to the circumstances of the colony. 1 pre-
sume that an Englísh acts at the period of the cession,
which are applicable to the colonies, are in force here,
and an acts since passed in which they are specially in-
cluded."


The Attorney-Genel'al states, "1 apprehend that the
common law, in so far as applicable to the situations of this
coIony, together with the general statute law, till the treaty
of Paris in 1814, when the island became an integral part
of the British empire, is operative here. From that pe-
riod, of course, we are only affected by su eh statutes of
the British Parliament as are expressly extended to
us."(4)


This colon y is stated to have l'eceived a constitution from
EngIand during the administration of Governor Ricketts,
in 1794, and lS therefore supposed to have adopted with
it, 01' at the period of the cession, all the Acts ofParliament
of Great BrÍtain suited to its condition and circumstances.
The charter itseIf of the constitution is understood to be
lost. The local acts now in force are certain Acts of As-
sembIy passed before the capture of the colony in 1798,
aneI revived in 1794, ane! acts passed since.-l Rep. W.
l. C. 71, 124.


COURTS FOIl. 'rHE ADMINISTRATION OF JUSTICE.


The courts for the administration of civil justice in the
isIand of Tobago, are the Court of Chancery,the Court of
Exchequer, the Court of Common Pleas, the Comp]aint
Court fol' the recovery of debts under 1:10, appointed by
the Court. Act; thc Court of Ordinary, the Court of
Escheat, and a special and occasional court-the Court-
Merchant. (5)


The courts for the admillistration of criminal justice
are the Court of King's Bench and Grand Sessions, and
the lnstance Court oi' Admiralty, and a Court of Quarter
Sessions, There is also a special commission under which


(4) 1 Rep. 124. (5) 1 Ib.72.




~30 TOBAGO.
AdmiraIty Sessions may he heId, as occasion requires j and
the Gove1'llor has always the power of issuing a special


'- cómmission of Oyer and Terminer.-l Rep. W. l. C. 76.


Court 01 Ckancery.
What was the original constitutioh ofthis court does not


c1early appear; hut it is stated to have be en revived shortly
after the capture of the colony, by an act llassed in Fe-
bruary, 1794. The Governor is now sole Chancellor, and
is supposed to posscss a11 the authority of the Lord Chan-
cellor of England.-l Rep. W. l. C. 76.


Court 01 Exckequer.
. This court . is recognized by the Court Act, and was


therefore rather revived than established by Governor
Ricketts in 1794, at which time a chief baron was ap-
pointed. N o court, however, is known to have been held
till the year 1815, when the appointment of chief baron,
which had long been vacant, was again fined up, and puisne
barons were appointed, and the court sat severaI days
for the first and last time, in the case of Cohens, a de-
faulter. The authority of the court and its rules are alike
unknown, as the charter ofthe constitution is missing, and
no records of the court can be found in the island.-l


. Rep.W. I. C. '79.


Court of Common Pleas.
This court del'Íves its authority from the Court Act, and


possesses the usual jurisdiction of the Supreme Civil
Court in the colonies. A chief judge presides with three
assistant-judges. The chief justice is appointed by the
Crown, the assistant-judges by the Governor. AH the
judges did hold their offices during pleasure, hut before
the report was completed an alteration took place which.
the commissioners thus notice :-" The tenure of office of
all the judges was during pleasure, hut by the new SIave
Act it is provided that 'the chief justicc of thc Court of
Common PIeas for the time being, and two puisne judges
to he appointed by his excellency the commander-in-chief
fol' the time being, whose commissions shall he quamdiu se
beue gesse?'int, 8ha11 be a comt, &c.' "




TOBAGO.


The salary of the chief justice was ;€3000 currency,
equal to ;€1~OO sterling. By a late act it has been re~
dueed. Tbe fees and perquisites of the office are, upon
an average, about ;€150 curreney. The assistant~judges
llave nQ salary, and do not usually transact that part of the
business which is remunerated by fees.-l Rep. W. l. C.
79, 119.


The decisions in this court are almost entirely governed
by the laws, usages, and practice of the courts in EÍlg~
land. The Court Act prescribes certain rules for plead-
ing, but very few; and when none are prescribed, the
practice is governed by the practice in Englimd. Actións
are commenced by filing a declaration. Good service of
process upon absent defendants who have no attorney
upon record in the island, is by nailing up a copy of the
declaration on the court-house door, and this applies
equally to defendants who have never be en in the island
as to those who have just quitted it, (but see ante, 93.)


A habeas corpus is obtainable both by common law and
by the statute. Special juries are known in practice here,
and are stnwk in the same manner as in England.


Executions are taken out and suspended, and llsed as
securities which are assignable, but the assignee QlUst
proceed in the name of the assignor. Executions bind
from the delivery. The marshal is directed by the act
to minute the time they come ¡nto his hands, and to levy
in the order and course in which they are received. When
the person is taken, there is no allowance in this island to
a debtor, a prisoner in execution.


The verdict canies costs with it in aH cases, except the
costs are restricted by the Court Act.-l Rep. W. l. C.
81, 8~.


Court qf Complaints, called at Barbados Bench
Actions.


In this eourt aetions are brought for sums under .i'1O,
and determined w~thout a jury.


The sitting is regulated by the Court Aet, and takes
place the day preeeding the holding of Courts of Common
PIeas, with a limited power of adjournment. Complaints \,
maybe tried before any judge of the Common Pleas, but
the chief justice generally decides them. One day com-




TOBAGO.


monly suffices for such business. The parties attend in
persono


An account filed by the plaintiff, of which a copy is
served on the defendant, with a summons, is a sufficient
allegation of the plaintiff's demand, without a declaration.


The whole costs of a complaint, up to the judgment,
are not more than '27s. The judge has afee of 5s. 01'
58. 6d.-l Rep. 8'2.


Court rif Ordinary.
This CQurt is held under instructions from the Crown,


before the Governor alone, having cognizance of probates
of wills, letters testamentary, and licenses for marl'iage.


AH wills are proved, and the ol'iginals are left with the
registrar, and deposited in the office.


AH marriages are by license of the Govemor as ordi-
nary, on an affidavit before the secretary.


The chiefjustice was not aware of any means by which
separate maintenance can be obtained by a \Vife in this
island ;nor was it known what measures were \lsed to
compel payment of costs. There is no process of excom-
munication, and nothing had be en heard of any proceed-
iogs as on a contempt.-l Rep. W. I. C. 82,83.


Court of Admiralty.
Tilis court del'Íves its power by commission frol11 Eng-


land. It has jurisdi~tion in this island only as an Instance
Court; matters of prize being decided in other colonies,
wItere a Prize Court is instituted.


There was no admiralty judge at the time the commis-
sioners were in the island, and the business was "at a
stand fol' want of a judge," though there were two cases
ripe for trial against parties under prosecution for not
making a return under the Registry Act. In other islands
the chief justice of the Common PIcas is frequently al80
judge of this court.


Admiralty sessions may be held as occasion requires,
undel" a commission then recently arrived from England, fol'
the trial of piracy, murder, and othCt' offcncc8 committed
upon the high seas. But no court had, at that time, ever
sat umler the commission. Costs are said to be taxed in
this comt by the registmr, accol'ding to fees established by
usag(';




TOBAGO. 233
The registrar of this court gives no sccurity.-l Rcp.


W. l. C. 83.


Court of Appeal a,nd Err01·.
This court "is established by the Court Act." The


Governor and Council are the judges. Where any of
these sat judicially in the court below, they only attend in
the Court of Error to "give infol'mation."


The procecdings upon wl'Íts of error are attended with
considerable expense. lt is the same with appeals to His
Majesty in Council, occasioned as the commissioners werc
told by the cost of taking out copies of papel's.-l Rep.
W. l. C. 83.


eourt of Escheat.
Thcrc i8 a Comt of Escheat in this island. Cases of


intestacy are not so frequent as formerly, but some occur
every yeal'. Slaves escheating are not considered as vir-
tualIy freed.


CRIMINAL COURTS.


Court of King's Bench and Grand Sessions.
The Court of Gl'alld Sessions i8 established by the


Court Act, for the trial of an offences committed by white
01' free coloul'ed persons.


The court is composed of aH members of council and
jl1stices of the peace. The commission of the chief jl1stice
does not extend to this court. He sits in it with only the
l'ank of a common justice.


The indictment is drawn by the Attorney-General, to
whom a fee has been generally paid for this service by the
publico


The case for the prosecution is opened by counsel (the
Attorncy-General), who is not confined to a mere statemeut
of facts, but also makes observations. Counsel also ad-
dress the jury on behalf of the prisoner.


The evidence sometimes is, and sometimes is not, sum-
med up by the judges. The jl1dgment is supposed to be
final. The chicf jl1stice said he kncw not to what court a
wl'it of eiTor could be taken, fol' there was no Comt of
King's Bench with a sl1perintending power.




234 TOBAGO.
Prosecutors and witnesses are not allowed theil' costs


and expenses.-l Rep' W. l. C. 83, 84.


Court 01 Quarter Sessions.
This court is directed to be holden on the thirdTues-


day in January, April, July, and October. The court
has" leave to sit as long as it shall be necessary for hear-
ing any business that may come before it," and is invested
" with the same powel' as the Court of Quarter Sessions
in England."-l Rep. W. l. C. p. 72.


The Court of Quarter Sessions at Tobago is constituted
similarly to those appointed to be held in Barbados, ex-
cept that there is only one court established for the island.
But, like them, it never sits; the business that should be
done there being all transacted at the Grand Sessions.-
1 Rep. W. l. C. p. 84.


Attorney-General.
The Attorney-General of this island has no salary nor


stated fees, and performs val'ious important duties re-
quiring his anxious and unremitted attention, without any
compensation whatever. For drawing indictments and
conducting prosecutions in capital cases, the fee has ge-
nel'ally been paid by the publico The Attol'ney-General
submits his account annually to the legislature, who deal
with it in their discretion.


Barristers and Attornies.
There is said to be a rule among the manuscript rules


and ol'ders "that every person admitted to act as counsel
in the courts of this island, must have been called to the
bar in EngIand," but such a rule, if it exists, has not been
acted upon. Formerly an examination of a candidate for
the bar, previous to his admission, took place before thc
Attorney-General 01' other Crown lawyer, and the judges
afterwards admitted to the bar of their respective courts
such persons as produced testimonials of their sufficiency."
Now, "the Governor exercises the l'ight of admission,"
said the chief justice, "as we understood, undel' the
King's instructions." They are admitted to act only
" during pIe asure," a form, it is. said, directed by the in~




'TOBAGO. 235
structions. The commissioners thought the propriety of
such an admission "very questionable, as it affccts the
independence of the bar." They observed that if such a
license was granted to act ~'during pleasure," it ought at
least to be expressed "dul'ing His Majesty's pleasure."-
1 Rep. W. 1. C. 87.


With respect to attornies or ~olicitors, they do not con-
stitute, in this island, a different bl'anch of the profession.
The sarue persons practise as barristers alld as attornies,
a~d are not reqllired to serve a, clerkship in the latter capa-
clty.-l Rep. W. I. C.88.


Justices of the Peace.
The duties attached to the office of a justice of the


peace, in this island, are the same as in England.-l Rep.
W. l. C. 88.


Coroner.
There are two coroners in this island, appointed and


removable by the Governor. Therc is no act of the is-
land directing inquests to be taken, either in the case of
free persons 01' slaves. They are taken in the same cases,
and the coroners pursue the sarue method as in England,
as nearly as circumstances will permito The coroner is
guided in the performance of his duties by the laws of
England.-l Rep. W. l. C. p. 88.




~36


BRIl'ISH aDIANA.
-


THE extensive and important colony of British Guiana is
the next that claims our notice. This colony formerly
consisted ofthree different divisions, Essequibo, Demerara,
and Berbice. From the time of these colonies coming
into the possession of EngIand until very lately, Bel'bice
constituted a separate colony; hut Essequibo and Deme-
rara had long been united. By a commission issued to
Sir Benjamin D'Urban, dated ltth Mareh, 1831, (see the
commission, post,) he was appointed Governor of an the
thl'ee colonies of Demerara, Essequibo, and Berbiec,
whieh were thenceforth dil'eeted to form but one colony,
and to beal' the name of British Guiana. These colonies,
together with the islands of Trinidad and Sto Lucia, being
colonies acquired by conquest, wel'e subject to the legisla-
tive powel' of the King in Council, (see ante, 4, 5, 6, and
B~, ~3). On the ~3d April and the BOth June, 1831,
Orders in Couneil were issued provieling fol' the adminis-
tration of justice in British Guiana, Trinidad, and Sto
Lucia, (see these orders, post,) and as the effect of the
first order (though its operation has been for a time sus-
pended by the second) was to unite these three colonies,
so far at least as related to the administration of justice,
some aecount of them wiII be given immediately after that
of British Guiana.


Demerara, Essequibo, and Berbice are colonies situated
in Guiana, which is a large country of South America,
bounded on the east and north by the Atlantic Ocean
and the river Oroonoko, on the wuth by the river of the
Amazons, and on the west by the provinees of Grenada
and New Andalusia. (1) The Duteh were lately in
possession of the four cstablishments of SurinaUl, Esse-
quibo, Berbice, and Demerara, which took their names
from the rivers on which they are respectively situated,
and together constituted what was calleel Dutclt Guiana. (2)


(1) Encyc!opredia Britannica.
(2) Les Troi5 Age5 des Colonies,


par De Pradt(1801), tom.i. p.70.
He afterwards observes, "Quatres
divers peuples Europeens occupent


la Guyalla,les E'pagnol. ~11 remontant
ver. l'Orinoque, les Hollandoi. apres
enx, les l/rangais plus au Midl, el les
Portugai. flepuis qu'iJs ont franchi
l' Amazonc." -p. 150.




BRITISH GUIANA. fl37
The thl'ee Iatter successively capitulated to the English on
the 18th and 24th of September, 1803, amI were ceded
to them as a B1'itish possession by the- convention signed
at London, 13th August, 1814.


Dutch Guiana was fo1'merly the property of thc Crown
of England, and the English had made settlements at Su-
rinam; hut of thcse settlements the Dutch made them-
selves masters in the reign of Charles n. to retaliate the
conquest of New Holland; and by a subsequent treaty in
:February, 1674, they obtained a cession of all the English
territories in Guiana in exchange for what thc)' had pos-
ses sed in the province now called New York. (3)
~tretching along the coast of the Atlantic, between the


Iatitude of six and eight degrees north, and the longitud e
of fifty-seven and fifty-nine degrees west, lies that part of
Dutch Guiana which contains the colony of Demerara, its
dependent settlement of Essequibo, and the colony of
Berbice. To the south-south-west thc river Courantin
separates this tract from Surinam; to the no1'th-north-
west the small inlet and stream of Moroko divides it from
the Spanish te1'ritory on the right bank of the Oroonoko.
Its length upon the coast, in a straight line, is about 160
miles, its breadth is not exactly ascertained, but is nearly
twice its length, and 1'eaches to the scantily-known p1'o-
vinces of New Cumana and New Andalusia, which are
cIaimed by the Spaniards, but which are in part inhabited
by independent Indian tribes. The limits of Berbice, to
the south-south-west, formerly extended no farther than
to the Devil's Creek, but in 1799, they were enlarged by
the addition of the lands between that creek and the river
Courantin. The opposite bounda1'Y of the colony, where
Demerara commences, passes from the mouth of Abary
Creek in a straight line to the southward. Between this
line and a similar one, drawn from the Boarisiree Creek
at the mouth of the Essequibo river, is included the colony
of Demera1'a. The dependency of Essequibo occupies
the rest of the territory as far as the Spanish frontier on
the Moroko.-4 B. Edw. ~41, ~42.


The principal rivers which water this district are the
Essequibo, the Demerara, the Courantin, the Berbice,
the Canje, and the Pomaroon. The first of these rive1's


(3) Bancl'oft's Hist. Guiana, p. G to 10.




f!38 BRITISH GUIANA.
is by far the Iargest. It runs a course of nearly 400 miles,
receives many considerable streams, is thickly studded
with islands, and where, through four mouths it empties
its waters into the sea, it is twenty-one miles in breadth.
The Demerara and the Courantin stand next in point of
size. They are all navigable, and the chief of them is so
to a considerable distance. The entrance to them is, how-
ever, somewhat difficult, in consequence of the bal's of
mud which have been formed by the deposits .from their
waters.-4 B. Edw. f!43. Large ships usualIy discharge
and take in part of their cargoes outside of these shoals.
Lang v. Anderdon, 3 B. & C. 495.


Cotton, sugar, amI coffee are the staple articles of these
colonies. Rum is of course manufactured to a great ex-
tent, and from the care which is taken in the distillation,
it is in high repute in the American market. Several
sorts of timber, fit for ship and other building, and for
ornamental uses, are produced here, and large quantities
of mill timber for the erection of sugar works, are ex-
ported to the islands. The forests are also capable of
nearly, if not entirely, supplying the home consumption
of shingles, hoops, and staves. Rice may be raised in
many parts with as much success as in Carolina, and the
Savannahs are admirably· calculated for the fattening of
oxen, which are in plenty, as are likewise sheep, goats,
and swine.-4 B. Edw.l244, !245. Ground provisions are
plentifully grown here, and the fruit of the plaintain tree
is most abundant.-Demerara Local Guide for 1833.


HISTORY AND CONSTITUTION.


Berbice was first settled as early as the year 16!il0;
Essequibo the next, and Demerara the lasto For many
years their culture amI commerce were in a languishing
sta te. Demerara, however, had gained so much the start
of Essequibo, that, in 1774, the seat of government was
removed from the latter, and Stabroek was founded.
From that period Essequibo, which had hitherto been the
principal,. became a dependency of Demerara. In the
year 1763, a rehellion of the slaves took place in Berbice,
but wassllppressed after. c<msiderable exertion. Great
numbers of the ncgroes were slaughtered. Those few
who escaped have since occasionally been joined by fugi-




BRITISH GUIANA. 239
tives from the estates, and these men are knowll by the
name of " bush negroes." Six years subsequently to this
rebeIlion, Berbice was exposed to another calamity. The
woods on the coast were set on fire, a crime which was at-
tributed to the rebel negroes, and the confIagration pro-
gressively extended from the river Courantin to the Deme-
rara, destroying the forests and devastating several rich
plantations. In the year 1785 these colonies were rednced
by a small British force, but they did not long remain in
the possession of their new masters, they being captured
by the French in the succeeding year. By a convention
signed at London on the 13th August, 1814, Demerara,
Essequibo, and Berbice, became a part of the British
dominions. Since then the prospe1'ity of these eolonies
has experienced a rapid increase, antI is still gaining
ground, so that the pl'Oduce 1'aised, and the shipping em-
ployed, now equal in value and number more than one-
third of the produce and shipping of the long settled and
fIourishing island of Jamaica.-4 Edw. ~49.


Stabroek, 01' Geo1'ge Town, the capital of Demerara, is
situated in 6° 50' no1'th Iatitude on the east side, and nea1'the
mouth of the river, which gives name to the colony. It is of
an oblong form, about a quarter of a mile in breadth, and a
mile in length; it stands on a low and level site, and the
principal streets are perfectIy straight, with carriage roatIs.
The houses are of wood, two 01' three stories high, amI
raised on brick foundations. In the public buildings there
is nothing which merits a particular description. Kingston,
Labourgade, Bridge Town, New Town, and Cumings-
burgh, al'e villages in the vicinity of Stahroek. They aH
owe their erection to the British.


The former capital of Berbice, called Zealandica, 01'
Old Amsterdam, was huilt about fifty miles up the river,
by the fil'st settlers. In process of time, however, as the
colony grew more peopled, and cultivation became more
extensive, this situation was found to be subject to great
inconvenience, from the difficulty with which vessels are
worked up the winding river, and the frequency with
which théy.groundedon. the nUlllerous muddy shQals,
whence it was sometimes impracticable to get them off tíll
they wera set afIoat by tbe 1'Í"ing of the spring tides. It
was accordingly resolved to remove the seat of govern-
ment to a more suitahle spot, within a mile of the sea.
This resolution was carried into effect in the year ] 795.




240 BRITISH GUIANA.
At the confluence of the Canje with the Berbiee, a town
was there laid out which was called N ew Amsterdam.


The powers of government were said by Mr. Edwards
(4 vol. 251,) to reside in tbe governor and a council called
tbe College of Kiezers. Tbis seems not now to be the
case (see the eommission to General D'Urhan, post). The
Court of Poliey appears at present to be the recognised
locallegislature of tbe colony, and the College of Kiezers
is in sorne respects a part of tbat legislature. The com-
mission aboye referred to declares that the bodies politic
heretofore existing shall be preserved, hut that the num-
ber of members of sueh bodies politic shall be aug-
mented "as by your said instructions is directed in that
behalf." Those instructions have not been laid before the
House of Commons, and are therefore not accessible.
As the institution of the eollege of Kiezers, 01' that of the
Court of Policy, is but little known in this country, it may
be as weIl to give a short description of both of those
bodies, as well as of the origin of the Financial Representa-
tives. The college of Kiezel's appears somewhat to resem-
ble an electoral college in France. It is not the legislative
body, but, as it8 name signifies, (the college of Kiezers,
being literally, the college of Choosers,) it ehooses or
elects the legislative body. Yet the very small amount
of its numbers, and the fact that the members of the
college of Kiezers do not become members in right of any
previously ascertained " qualification " in oul' English sen se
of the word, but are actually elected by the inhabitants at
large, deprive it of its exact resemblance to the electoral
colleges. The Court of Policy, anciently called also the
Council, seems to have been nothing but an executive and
administrative board, assisting the Governor in the dis-
charge of his duties, and composed of the four chief
servants of the Dutch West India Company and four in-
habitants chosen by the college of Burgher Officers or
Kiezers. The Court of Policy was afterwards made by
the terms of the eapitulation to the English in 1803, (see
ante, p. 26,) a local)egislature, and seems to unite the
functions, except as to the levying of taxes, of the English
Houses of Lords aod Commons, and of the Privy Conocil.
The Financial Representatives resembled, in having the
direet power of taxation in their hands, the English
House of Commons, bnt resembled it in that respeet alone,
for the power of making laws was not given to the Financial




BRITISH GUIANA. 241
Representatives whose authority was expressly limited to
"the purpose only of raising, in conjunction with the Go-
vernor and Court of Policy of the said colony, the colonial
taxes," and of examining the aeeounts.


The following sketch of the history of these three bodies
lS the best that the author has been able to meet with. It
is extraeted from the Local Guide of British Guiana for
the year 1833, and seems to have been drawn froID au-
thentíe sourees.


In 1739Z, the constitution of Berbiee, then a propl'ietary
government, (as to whích see ante, p. 17,) was enaeted
by the States-General to be as foIlows:-The govem-
ment was to be administered by a Governor and Couneil ;
the Govel'nor to be appointed by the Direetors of the
Duteh West India Company, under a eommission from
the States. The Couneil to eonsist of six persons, to be
ehosen by the Govemor out of twelve nominated in the
tirst instanee by the inhabitants, afterwards by the re-
maining Councíl. The Court of Criminal Justíce to be
appointed by the Council 01' Court of Policy. The Court
ofCivil Justice to consist of the Governor and six members
selected by him from twelve nominated, haIf by the Court
of Poliey, half by the inhabitants, three members to retire
every two years-the Govemor to have but one vote.
The Court of Poliey to take preceden ce of the Court of
Justiee, and individual members from the date of their
appointment.


In 1739 the tirst eonstitution of the coIlege of Kiezers,
appears to have táken place at the eompany's establish-
ment in Demerara, although the formal grant of the
settIement by the ehamber of Zealand is dated in 1745-
1746. By the terms of this grant Demerara was sub-
jected to the jurisdietíon of the elder eolony of Essequibo.
In 1773 the Courts of Poliey and of Criminal and Civil
Justíee were first established in Demerara, at an island
about twenty miles up the rivel', called the Borselen.
The .courts consísted {lf the Commandeur (governor)
of Demerara, the Commandant (chief military officer
under the governor), the Fiscal, the Vendue Master, and
fou!' inhabitants, selected from a return of twiee that num-
ber, made by the College of Burgher Offieers, exereising
similar functions to the Kiezers of Essequibo. In 1776
the Assembly of Ten, in Holland, passed an ad declaring
H that the College of Kiezers is not eonsidered a judicial


R




BRITlSH GUJANA.


body, but as electors of burgher repl'esentatives in coun-
cil," and another of 1778 stated "that the Kiezers, not
being in the pay of the company, are not l'equired to watch
the interests of the company, but those of the colony
only." In 1785, on the l'estitution of the colony to the
Dutch, the Courts of Policy of Demeral'a and Essequibo
wel'e united at the former place. The inhabitants of De-
merara petitioned the director-general, L'Espinasse,
stating that on the taking of these rivers by the English,
the Assembly of Ten released an their superior and in-
ferior servants 01' ministers from their service· 01' ministry,
and that the said assembly now maintained that all the
members of the then existing Court of Policy and Justice
were included in such release, and in pursuance of such
opinion, in resuming the possession and administration of
these colonies, had assumed the appointment of three
colonial members, viz. Joseph Bourda, Cornelius Over-
broek, and Peter Van Helsdingen; that the second
named having departed this life, and the other two having
declined the appointment, caused three vacancies; that
the director-general, by virtue of his instructions, had ap-
pointed Messrs. C. J. Hecke and F. C. Changuion, as two
members, and for the third sent a nomination to the West
India Company: Against aH which the colonists protested :
~lst. Because the colonial or burgher members, selected
from a nomination made by the elective college, could not
be comprehended undel' servants 01' ministel's of the West
India Company ;-~d. Because the burgher members are
expressly distinct from the sel'vants of the West India
Company, viz. by instructions of the Assembly of Ten,
!2~d March, 1773, Art. 6. "In aH cases of importance,
and in the execution and promulgation of the laws, ordi-
nances and regulations now in force, on the enactment 01'
publication of any new orders, the commandeur shall
convoke the Council, consisting of-lst, the commandeur,
-~d, the captain-commandant,-3d, the fiscal,-4th, the
vendue-mastel', and foul' of the principal best infol'med
and most respectable inhabitants; and that, pl'evious to
these foul' assumed membel's taking their seats, they shan
be sworn in due form." That consequently the Courts of
Policy and Justice consisted of the 'Vest India Company's
servants (Bediendens) and four membel's assumed from
among the bul'ghers, which four could not be compre-
hended among the Company's servants, but retained their
functions, especially as these functions wel'e reserved to




BRITISH GUIANA. 243
tbem in tbe capitulatians both to tbe English and :Fl'ench,
in 1781 and 1782, and lastly, by the instructions of the
"Vest India Company of tbe 28th October, 1783, requesting
them, as "the now existing Cauneil of Demerara," to
continue tbeir functions, and take over the colonies from
the commissioners of the King of France, wherefore tbey
pray, &c. The Director-general referred the memo-
rialists to the West India Company. On the 10th of July
tbe inhabitants oi' Essequibo joined in this matter, and
they all memarialized tbe States-General, who finally con-
firmed the righ~ of the Kiezers.


On the 7th of September, 1812, Governor Carmichael
issued a proclamation declaring tbe College of Kiezers of
the united colony of Demerara and Essequibo to be no
longer a distinct and separa te institution, and directing
that the College of Kiezers and the Financial Representa-
tives sbould tbenceforth be combined into and constitute
one single college, and that the election thereof should be
by other persons than those wbo had theretofore elected
tbe saíd colleges. By a proclamation dated 21st July.
1831, Governor D'Urban announces that he had received
instructions from His Majesty declaring tbat such pro-
clamation of Governol' Cal'micbael had never been con-
firmed at home, and tbat it was not autborized by the
powers conferred upon bim, and was tbel'efore void; and
further providing tbat tbese two public bodies sball again
be separated, and shall again exercise their respective
functions. In pursuance of these instructions, Governor
D'Urban proceeds to "constitute and appoint a College of
Kiezers of the eolony of British Guiana, fol' tbe purpose of
electing members to fill vacancies in tbe Court of Policy of
the said calony." The college was to consist of seven Kie-
zers, to be eIected for life. The Governor at tbe same time
'1 constituted and appointed a body ofFinancial Represen-
tativas oí tbe colony ofBritish Guiana, fol' tbe purpose only
of raising, in conjunetion with tbe Governor and Court of
Policy of tbe said colony, the colonial taxes to supply the
sums required by tbe annual estimate previously prepared
by tbe said Governor and Court of Policy, and of examin-
ing, in conjunction with the Comt of Policy, tbe accounts
oftbe colonial receiver-general fol' the pl'eceding year." (4)


(4) Since the date of this proclama-
tion the Financial Reprcsentatives


have heen constituted in the mallller
there prescribed. Thc autbor has becn


R2




BRITISH GUIANA.


The body of Financial Representatives was to consist of six
members, the term of whose services was to be for two
years. AH inhabitants of the colony possessed of twenty-
five slaves or upwards were called upon to 'Vote at tho
eleetion of the members of the College of Kiezers and of
the Financial Representatives.


In 1784, there was a resolution of the States-General
that the Courts of Poliey of Demerara and Essequibo
should be united and hold aH future ¡¡essions in Demerara
alone. In 1812 an distinetions between the eolonies of
Demerara and Essequibo, whether of jurisdietion or
otherwise, were abolished by proclamatian of Governor
Carmichael, the office of commandeur of Essequibo and
the judical establishment at Fort Island were discontinued,
and the Court of Criminal and Civil Justice in both colonies
were united in Demerara. The name of the capital was
changed from Stabroek to George Town, and a board of
police was appointed for its internal management. The
6rst institution of the trial by jury in Demerara took place
in 1818.


Courts Criminal and Civil.
The following aecount of the eourts is taken from the


report of the Commissioners of Legal Inquiry, and re-
presents the condition of the colony at the time it was
visited .by them. Thc change in the judicial establish-
ments of the colon y are of such a recent date Csee Orders
in Council, post,) that it is not improbable questions may
for sorne time arise upon decisions given under those foI'-
merly existing. It has therefore been deemed a.dvisable
to preserve this sketch of their nature and jurisdiction.


The eourts established in DEMERARA for the adminis-
tration of criminal and civil justice respeetively, are, a.
Supreme Court for the trial of criminal and civil cases,
and a Commissary Court fol' the trial of causes for sums
under 600 guilders.


informed that an importan! dispute
has arisen as to the limils of thdr
powers. They illsisted, and ";ith some
shew of reason, that they were not
cOllstiluted ruerely to go tllflJlJgh the
form uf voting the cstimates which
had Leer. previotlsly prepnrcrl by the
GO\'cnlOr alld COtll't of Polic\', bl¡t
had ti rigllt to e"elTise tbd," discrc-
tion in Hctopting 01' rejectillg ally por-
t iOIl of tllem. The Oo\'eruor deL' ied


tbis. 'fhe Financial Representatives
insisted, and by withholdillg the sup-
plies have for a time gained their
point. The "ight thus claimcd by
tlJem has llot, however, been recogni ....
:r.ed by tlle hOIllf' u;overnmc:nt; but it is
to be ilOped thal :lS the colonis!s are in
forrn alluw('d to dect a taxing hody,
ils autho"ity llIay Il"t be so restricted
liS lo render il llsetcS' ir not ridícu-
lous.




BRITISH GUIANA. ~45


Superior Court.
The Superior Court 'of Demerara consists of a Pl'esi-


dent and eight members, of whom four and the President
must be present to constitutc a court.


Tbe President is appointed by the King, and remo v-
able at his pleasure. The other members are planters or
merchants of the colony, elected by the College of Kiezers,
who, when vacancies occur, return a double number, from
whieh the Court of Justice makes a seleetion. Theyare
obliged to serve, under a penalty of 3,000 guilders. In
the month of May of every second yeal', one-thil'd of these
colonial members vacate their seats, beginning with the
oldest member, and as their number is eight, three and
two vacate every alternate second year.


Commissm'y Court.
The Commissary Court consists of two members of the


Superior Court, who serve in rotation.
Any member of the court may be chalIenged, in the


like manner as a jmyman, and should he not withdraw, on
the exception of incompetency, the question would be de-
cided by the court.


The colonial members of the same colony receive no
salaries, but are entitled to and reeeive certain fees, whieh
are stated to average froID 400 to 500 guilders per un-
num each. They are also provided with board and lodg-
ing at the public expense at the colony-house during their
attendance.


COURTS AT BERBH::E.


At BERBICE the administration of criminal justice is
vested in the Governor and Couneil; and that of civil
justice in the Governor and six members.


A Commissary Court and a Roll Court are also held at
Berbice; the fol'mel' by two members of the full comt, fol'
the trial of causes fOl" sums undel' 600 guilders, the latter by
one member ofthe same court for the interlocutory pl'oceed-
ings on the Roll, (5) which is termed the instruction of


(5) Such as filing claim and de-
mand, Uf declaration, 3nswer, ,'epli-
que, aud duplique, inveutory uf


"ollcher" exchangc oí vouchers, iu.
terrogatories for cxuminutioll of wit-
nesses, &c.




246 BRITISH aUIANA.
the cause. This member of the court is termed in France
" le Juge d' Instructíon. (6) The Court ofCriminal Justice
is composcd of the Governor and six membcrs, and, in
Cases of vacancy, the latter are selected by the Governor
froro a treble number pl'esented to him by the rcmaining
members. .


Court of Civil Justice.
The Coul't of Civil J ustice is composed of the Governor


and six members, of whom the Governol' (as President)
and foul' members constitute a court.-::2 Rep. fi?d series,
W.I.C.::2.


The members of the lattcl' court are elected by the Go-
vernor frOJIl a double number presented to him, as nomi-
nated by the Govel'llor and Councíl. Three members
retire biennially, and their pIaces are supplicd by others.


Any membcr may be recused for incompetency, enmity,
consanguinity within the second degree, and fol' various
other causes specified in the written law.


The emoluments and priviJeges to which those Berbice
members are entitled, are enumerated, (::2 Rep. !2d series,
W. 1. C. p. 5::2,) and it will be seen that they also, as well
as thc members of the Superior Court at Demerara, are
entitled to board and lodgíng at the public expense
during their attendance on the courts.


LAWS. (7)
The laws in force in these colonies, as gual'anteed by


the al'ticIes of capitulation 011 theit' surrender to Bis Ma-
jesty's arms, on the' 18th September, 1803, are the old
law of Holland, peculiar vernaculal' Jaws, and the Roman
]aw, in subsidium, particularly with regard to slaves.


The following is an extmct from the " Register of Re-
solutions of their High Mightinesses the States-Geneml


(6) At Demerara this Rol! Conrt
is held by two commissaries.


(7) Sec the remarks (ante, p, 3 to 16)
on ¡he general topie, how far the colo-
nies are subject lo the luw of the mo-
tller coulllry. The law by which British
Guiana is chiefly governed is 11Ie Ro-
man·Dulch law of Ihe Seven United
Provinces,(see ante, p. 23, Ilmi 2 Rep.
W. r. C. ed series, 3, 53,54.) A


very able translation of " tbe Laws of
Holland" has been published by ]\fr.
Henry, who was sorne time Presiden!
of Ihe Superior Court at Demeral"a,
and who afterwards went thither as a
comll1issioner lo inquirc into and re-
port the slatc of thc Admi,listr"tioll
of Civil aud Criminal J ustice in lhe
colony.




BRITISH GUIANA. 247
of the United Netherlands." It is dated 4th October,
1774, and is the authority by which the general law of
Holland is directed to be followed in the colonies oí De-
merara and Essequibo.


f' Extractfrom tIte Register of Resolutionsoftheir Higlt
Miglttinesses the States-General of tIte United Nether-
lands. Daled 4th October, 17H.
H That it shaIl be furthel' enacted, as it is by these pre-


sents enacted accordingly, that all the laws of Holland in
general, and more particularly all law3, statutes, resolu-
tions, and ol'dinances of their High Mightinesses, 01' the
Committee of Ten, with the approbation of theil' High
Mightinesses, heretofore transmitted 01' hereafter to be
tl'ansmitted to the Director-General and the Council of
Essequibo, 01' to the Commandeur and Coullcil of Deme-
rara, shaIl be the rule of their judgments.


" That in matrimonial questions they shall be regulated
by the ordinance decreed by the States of Holland and
West Friesland, on the 1 st of April, 1780: and in matters
relating to hereditary succession, ab intestato, by the law
of consanguihity, termed Aasdoms Veusterfrecht, as con-
tained in the decree of the States of Holland and West
Friesland, dated the 18th of December, 1599.


"That in civil causes they shall be regnlated by the
manner of proceeding enacted by the Assembly of Ten;
in criminal causes by the criminal ordinance and style of
proceeding of the year 1570. so far as the constitution of
the colonies will permit it; and that in every thing, not
especialIy provided for, they shall have recourse to the
written laws.


" And an extract of these resolutionsshall be sent to
the representative of His Highness and to the Directors
of the West India Company in the Assembly of Ten, with
orders to cause the foregoing regulations and further
arrangements to be duly published."


(Signed) COCQ. D. HhEFTEN, Vt.
Conformably to the aforesaid


Register.
(Signed) H. F AGEL.


As regards the question how far English Acts of Par·
liament are considered binding in these colonies, the Pre-
sident of Demerara said he considered all English aets




relating to the colonies as in force in Demerara, although
passed before that eolony belonged to the British govern-
mento


The members of the Court of Civil Justiee at Berbicc,
statcd that English aets were not generalIy eonsidered as
binding there. They enumerated the Navigation Acts,
and those relating to the SIave Trade, as being in force in
their colony. Proofs for the recovery of debts, under the
British act 5 Geo. !?, are admitted in both eolonies.-!?
Rep. !?d series, W. l. C. 3.


Practice of tIte Courts.
The pleadings in the Courts, both in criminal and civil


cases, are carried on in the English language, under an
order of Ris late Majesty when Prince Regent.


By a rule of the Superior Court in Demerara, it appears
that a party is prohibited from being heard therein in
person, and the President thinks it could not be done
away with without much inconvenienee. At Berbice also,
by a rule of their courts, a party is required to appear by
attorney; but (it was stated) he may, thus assisted, by
leave of the court, be heard in person.-fl Rep. 2d series,
W. l. C.4.


In cases of error or misprision in pleading, relief is
afforded by the courts, it being, as was stated to the com-
missioners, uncommon to quasb a11 the proceedings on that
aecount. This is termed " CivilReliif" in the Dutch law.


In neither colony does the Court state (said the exami-
nants) the reasons of its judgments.-!? Rep. !?d series,
W. l. C. 5.


In the case of a witness absent from the colony, bis depo-
sition on oath, attested according to the law of the eountry
where made, is (said the President of Demerara) generally
admitted without objection. The Fiscal doubted whether
it could be obtained by any pl'Ocess issuing from the Civil
eourt. Where a witness is in the jurisdiction, but pre-
vented from attending by sickness, his evidence is obtained
by a process termed enqueste valetudinair.


As regards powers of attorney to be acted upon in De-
merara and Berbice, it appears that tbey are held valid if
executed according to t~e laws of the country where made.
It requires a special power to execute any deed conveying
any interest in lands Ol" houses, or an estate in the colony,
hut it is not necessal'y that such special power should be




BRITlSH GUIANA. 249
recited in the deed itself. The deed, however, must re-
cite the authority ot· power of attorney, as being of record
in the registry.


When application is made to the court at Demerara to
put off a trial on account of the absence of a material wit-
ness, an affidavit to such effect is (said the President)
seldom called foro The court, however, requires to be sa-
tisfied that the evidence is material.


At Berbice the course appears to be always to require
an affidavit in such case, and to examine into the mate-
riality oí the evidence.


Citation ad valvas curia: (or nail process) is reckoned in
Demerara good service, both in the case of persons who
have quitted the colon y without leaving any agent or at-
torney to represent them, and oi' those who, although they
may have a property in the colony, have never be en
there. (8)


At Berbice, however, a aistinction was drawn by the
examinants, as to whether the claim was against real 01'
personal property. In the former case it was said that the
owner being absent and having no representative, the
suit would be instituted generally against the proprietor 01'
proprietors, representative 01' representatives, and service
of process would be on the plantation; but if against per-
sonal property, recourse would be had to arrest and cita-
tion ad valvas curia:, and served at the debtor's last
domicile.


Jt was added, at Berbice, that it had not been the prac-
tice to consider persons holding property there as absen-
tees.-2 Rep. 2 series, W. l. C. 6.


The Superior Court, in both colonies, has an equitable
jurisdiction, though at Berbice the examinants seemed
to think their court had no power to relieve in the case of
a deed or instrument lost. In cases of fraud, palpable
eiTor, &c. the Governor, as representative of the Sove-
reign, is authorized, on petition, to grant a mandameot of
relief with committimus to the Court of Justice, where the
matter is tried 00 its merits. It has also extensive jqris-
diction over testamentary guardians and executors, where
the interests of minors are concerned; obliging such par-
ties, on suggestion of misconduct, to render accounts,
which accounts are referred to the sworn accouotant for


(8) But as lo (he elfect of this mode attempted lo be ellforced in this country,
of sn.ice upon a jndgment afterwarrls sce ante, 93, ¡¡ud the cases thefe citecl.




250 BRITISH GUIANA.
report, and afterwards approved 01' otherwise by the
court.


Though trusts are enforceable in these courts, the Pre-
sident of Demerara said that they were not attended with
all the rights and consequences which are given to them
in the Courts of Equity in EngIand.


The Superior Court has authority to appoint curators
over the person and property of idiots, prodigals, and lu-
natics.


Though the writ of injunction is not known by name in
these coIonies, a remedy of a similar nature (termed penal
malldament 01' interdict,) may be obtained by a party on pe-
tition, to restrain proceedings which he considers injurious
to him.


When a witness is old 01' infirm, 01' about to leave the
colony, and it is desired to preserve his testimony, he
may be examined before . a commissary of the court, whe-
ther a suit has been instituted or noto In the one case
notice would be given to the defendant; in the other, to
the party in future to be interested, for the purpose of
permitting him to eros s-examine.


The Pl'esident of Demerara said, that he should require
a witness so exam'ined to be afterwards produced, if it
were found practicable, provided either party wished it.
This mode oftakingevidence de bene esse, is termed in the
Dutch Iaw, Enqueste Valetudinair, from the circumstance
of the sickness 01' infirmity of the witness being the chief
cause.


The Fiscal of Demerara seemed to doubt whether to
obtain the testimony of such witness, it was not necessary
that a previous suít should have been instituted.


It appears that there is no difficulty 01' intricacy in these
colonies in the mode of transferring 01' conveying real
01' personal property, it being, on the contrary, simple and
convenient. Should the subject be real property, it is
conveyed before the judge of the Commissary Court, after
a previous public notification in the Gazette, in order that
any creditor of the party proposing to alienate 01' burthen
it, may have an opportunity of noting his opposition and
securing his debt. Moveable property may (said the Fis-
cal of Demerara) be conveyed or mortgaged in this manner,
01' by delivery. If moveable property (he added) be not
mortgaged before the judge, and the mortgagor continue
in possession, the same would be fraudulent against third
persons.-2 Rep. 2d series, W. l. C. 7,8.




BRITISH GUIANA. 251
There is no process in these colonies similar to thc


English writ of ¡tabeas corpus. A person illegally impl'i-
soned would (said the President of Demerara) be dis-
charged on petition to the court. The Berbice examinants
said, that a party in such case might complain to the Go-
vernor, but if this commitment should take place by order
of the Governor himself, the want of this writ would then
be felt.


Foreign powers of attorney to recover, must, it would
seem, be recorded. No time is limited in which parties
may present their documents to be dcposited 01' re-
corded.


The following is the course adopted by a uebtor who
wishes to escape personal arrest, 01' ohtain release from
prison by a surrender of aH his property to his creditors :
-He applies for a writ of cessio bonorttm, which issues in
England, and is sent to the colony for trial, when the
court, after hearing parties, appoints curators, who take
the property and act fúr the benefit of the creditors. The
Governor, as repl'esentative of the Sovereigp, has power
(it was said by the cxaminants at Berbice) to issue this
writ.


The following is the law of prescription in criminal and
civil cases, as stated by the examinants at Berbice. Civil
actions are pl'escrihed by the lapse of one third of a cen-
tury, but sentences in civil actions are prescribed 01' rather
become superannuated by a lapse of five years; but a
mandament (in the nature of a scire facias) may be ob-
tained to sue execution decreed on them in court. Crimi-
nal actions are prescribed by a lapse of twenty years,
except in cases of adultery, (9) when the prescription takes
place in five years.-2 Rep. fZd series, W. l. C. 8.


Provision is made by the law in those colonies for pro-
tecting the rights of absent foreign creditors, in the case
of a sale of an insolvent estate, the practice being to insert
advertisements in the Gazettes of England and Holland
three several times, six months before such in tended sale,
calling upon the creditors to appear before the court to file
their claims; and the judicial sale nevel' takes placeunder a


(9) l'he law of Hulland treat. adul-
tery as" public crime, and llot as a
civil iujul'Y. .For the pUlIishmeuts in-


flieted in cases ofadultery, sce Henry's
Van Der Lindeu, 354, et seq.




252 BRITlSH GUIA NA.
year from the time of sequestration.-2 Rep. 2d series,
W. l. C.9.


President.
The chief judge of Demerara, as we have before seen,


is called "The President." He is a barrister, and ap-
pointed by the King, with a salary of o€3000 sterling pel'
annum, and his fees are accounted for to the government;
he is also provided with a house and servants at the go-
vernment's expense. At Berbice the Governor acts as
president of the courts of justice. He is appointed Go-
vernor by the King's commission, but it appears by his
answers to the commissioners that he presides in comí by
virtue of his instructions from the Secretary of State.
He does not in the latter capacity receive any salary nor
fees.-2 Rep. 2d series, W. l. C. 11.


Fiscal.
In the united colony of Demerara and Essequibo there


are two fiscals (first and second), at Berbice but one.
The fiscals in the united colony are appointed and re-


movable by the King, the lieutenant-governor having
power to suspend 01' remove until His Majesty's pIe asure
be known; from this order an appeal would He to the au-
thorities in the mother country.


The fiscal at Berbice stated that he derived his appoint-
ment from the lieutenant.governor of the colony, and hcld
it during his pleasure.


The powers and duties of the principal fiscal are very
numerous and important, and at the same time differ in
many points from those of a crown, officer 01' attorney-
general in the other West India colonies. He is, however,
Iike them, a public prosecutor. He is, by virtue ofhis office,
a member of the Court of Policy 01' Legislative Assem-
bly ofthe colony, and is bound to give his ud vice to the
court in aU matters in which it shall be required. For a
full uccount of his duties and privileges, see 2 Rep. W. l.
C. 52d series, Appcndix J. pp. 5249, 250, 251.


The following are the emoluments of the first fiscal at
Demerara, as stated by Mr. Herbert :-a salary of 25,000
guilders from the colony, a sum of 7,200 guilders from the




BRITISH GUIANA. 253
King's chest, and an allowance of 2500 guilders fol' house
rento His fees (whieh average about .;[300 ayear) arise
from the entry and c1earance of vessels, permits to ship
sailors, certifieates, and registering oflanded slaves. His
present emoluments amouot to .[2700 sterling.-2 Rep.
2d series, W. l. C. 12, 13.


Second Fiscal of Demerara.
This officer is appointed by His Majesty ; he is tbe chief


civil magistrate and head of poliee in the distriet of Esse-
quibo, and his duties, among othel' things, are to take
eognizanee of all crimes, breaches of the peace, 01' of the
laws and regulations of the colony, committed within his
district; also to hear complaints of slaves against their
masters and others, and of masters against their slaves,
and to do justice betweeo them in a summary way. (1)
lt is also his duty to see that the slaves 00 the plantations
are furnished with a sufficient suppIy of clothing and
other necessaries, and that tbey are comfortably lodged
and properIy attcnded to in sickness. The amount of his
salary is stated by him to be 17,200 guilders per annum,
of which 15,000 is paid from the colonial chest, and
2200 guilders from the King's chest; and that he receives
no other emolument whatsoever.-2 Rcp. 2d seríes, W. l.
C.13.


Colonial Secretary.
This office is hcld in both colonies by warrant under the


privy seal. There is no salary attached to the office of
Colonial Seeretary at Dcmeral'a, his emoluments consist
of fees. At Berbice that officer receives a salary of of2000
sterling per annum, in lieu of fees, which are carried to the
public account. .


At Demerara it is not tbe pl'actice to permit parties to
have access to the registry of tbe acts, 01' to the original
acts themselves, deposited in the secretary's office; but


(1) By the Slavery Abolition Act
no person but a special justice of the
peace, appointcd under that act, will
in future possess any jllrisdiction over
the apprcnticed labourers. But as ¡he
commissioncl's rcported strongly in


favoUl' of Ihis brancll of Ihe Fiscal'.
office, it will probably continne to be
exercised by him, 1I0t in the character
of Fiscal, but under the authority of
an appointmen't as spedal justice of
the peace.




BRITISH GUIANA.


at Berbice, it appears that aH parties may examine the
registry, and even without fee 01' reward.-2 Rep. 2d se-
ries, W. 1. C. 14, 16.


Sworn Accountant.
This office has been abolished by the Order in Council


dated 23d April, 1831,· (see post.) The duties of his
office are in future to be performedby the vice-president
of the court of criminal and civil justice ofDemerara and
Essequibo, and by the vice-president of the court of civil
justice and of the court of criminal justice of Berbice.
Those duties are to examine the accounts of persons hold-
ing trusts under the appointment of the conrt, either as
sequestrators, curators, guardians, 01' trustees; to examine
the claims filed against insolvent estates, and to report
thereon, and on an matters of account referred to him by
tho court. The sworn accountant has no salary but is
paid by fees.


There appears to be a diversity in the practice of the
two eolonies, as to the arranging the claims of creditors in
cases of praJ et concurrentiaJ. At Demerara the court
dictates its classification to its secretary. At Berbice the
arrangement is made, in the first instance, by the sworn
accountant, and submitted, with a report thereon, to the
court, public notice at the same time being -given to an
parties.-2 Rep. 2d series, W. l. C. 16, 17.


Advocate pro Deo.
The original design of this office was to assist such per-


sons in the prosecution 01' defence of their rights befare
tho courts of justice as were unable, from their poverty,
to pay the regular fees of counsel 01' attornies. From the
answers, however, oí the gentleman who holds the ap-
pointment at Demerara, and from the terms of his eommis-
sion, with which he furnished the commissioners, it would
appear that he is entitled to consider himself as a law
officer of the erown, and the legaladviser ofthe Governor,
as well as advocate pro Deo; and although, in practice it
does not appear that he has frequently actcd 01' been con-
sulted in the befol'e-mentioned capacity of law officer 01'
adviser of the Crown, yet, as such a claim on his part may
be found to clash with the duties of the first fiscal, the
eommissioners thought that sOrne measure should be taken




BRITISH GUIANA. 255
to remove this seeming incongruity, the office of legal ad-
viser to the Governor being generally considered as apper-
taining to the first fiscal.


At Berbice there is no advocate pro Deo, but it appears
from the answers the commissioners received there, tbat
tbe practice, in cases requiring such assistance, was to se-
lect for that duty one of the attornies practising at the
bar, who, if he succeeded, was entitled to costs from the
opposite party.


Tbe salary of tbis officer (paid out of the King's chest)
at Demerara, is 7500 guilders per annum, and he is, be-
sides, entitled to costs in case he succeeds, if by sentence
of the court the defeated party should be condemned to
pay costs.


Tbe advocate pro Deo said that he díd not consider
himself autborized to undertake any cause pro Deo, with-
out tbe authority of the Governor, or tbe court of justice,
or the President.-2 Rep. 2d series, W. I. C. 17, 18.


First Marshal.
The first marshal at Demerara holds his appointment by


virtue of letters-patent from His Majesty, and executes bis
duties by a deputy whose nomination has been confirmed
by the court of criminal and civil justice. Till the year
1816, tbe nomination of tbe sub-marshals was with tbe·
court of justice; but byan order of the court of the 25th
of April of that year, it was given to the first marshaI.


At Berbice the person filling this office derives his
autbority from the appointment of the court of civil jus-
tice, and he performs its duties in person, assisted, how-
ever, by a second marshaI in services out of the town.
. In neither coIony is any saIary attached to this office;
its eroohnnents arising solely froro fees .... ':"'2 Rep. 2d series,
W. 1; C. 18.


Drossart.
This officer has the superintendence of the gao], and


the prisoners therein confined for criminal and civil
offences, and for debt. He is appointed in each colon y
by the lieutenant-govemor thereof. At Berbice this offi-
cer is also called under-sheriff and gaoler.


At Demerara the emoluments consist of a salary of
1500 guilders from the colony, and 1000 guilders from the




256 BRITISH GUIANA.
Crown, an allowance fol' house rent of ~~OO guilders, and
certain fees.


At Berbice the salat'y is 1200 guilders and fees.
In both colonies the duties are stated to be executed in


persono
In Demerara a cipier, or sub-drossart, is appointed by


the Governor, and at Berbice there are six dienaaren, or
subordinate officers of justice, employed to assist the
drossart.-~ Rep. ~d series, W. I. C. J9.


Counsel, Attornies, and Notm·ies.


The practitioners of the law in Demerara are divided
into practitioners in fuIl (i.e. persons acting both as advo-
cate anei attorney,)and attornies and solicitors, the last
being permitted to practise only in the Commissary Court.
A person called to the bar in England, Ireland, or Scot-
land, or who has taken a degree in law in any university,
is admitted, without examination, to practise; but persons
not so qualified are examined by the President as to their
fitness. The President added, that no practitioner in fuIl
had been admitted to the courts sínce his arrival in the
colony. The fiscal of Demerara, in answer to the first
question under this head, stated, that there were certain
rules in this matter, which, however, were never observed,
and that an idea had gene rally prevailed that an English
barrister could not practise in that colony, except through
courtesy. He observed, however, that an English Ol' Irish
barrister, 01' Scotch advocate would be permitted, without
cxamination, to practise at thc bar there. At Berbice it
appears that there are no counsel (properly so called) the
attornies at the bar being employed and acting as sudI.
They are admitted by the court as licentiates, without
being required to show that they have been called to the
bar in England, Ireland, 01' Scotland, or taken a degree
in a foreign university. They usually, however, produce
to the court certifica tes from a professional man as to their
ability and character.


The cxaminants at Berbice aIso stated that sometimes
the admission of attornies to their courts was only pro-
visional, ad tempus, to enable the court to judge of the
capability of thc party applying.-~ Rcp. ~d :series, W.
1. C. ~1, 114, 115.


1 ¡


..




BRITISH GUIAN A. 257


Court o/ Admiralty.
There is an Instance Court of Vice-Admiralty in each


of these colonies, having jurisdiction over cases of smug-
gled goods, questions of right of property in vessels, dis-
putes between masters and seamen, and breaches of the
laws of navígation and trade. The power of trying prize
eauses is, withheld from them; the judges of these courts
are appointed by commission under the great seal of the
High Court of Admiralty in England; the judge at
Demerara (who is indeed the same gentleman who holds
the office of president of the court8) performing the du-
ties in person, while the Berbice judge executes tbe office
by deputy .


. These judges eojoy no salary, but are paid by fees,
which io Demerara are estimated at an annual average
amount of .t60 sterling. On the commissioners inquiring
what was the average at Berbice, the deputy-judge surro-
gate informed them that they could not be ascertained, as
tbere had been no suits there for the last tlu'ee or four
years.


The officers of these Vice-Admiralty courts, respec-
tively, al'e a King's advocate, a registrar, and a marshaI.
On inquiry at Demerara, by whom these officers were
appointed, the judge informed the commissioners that
they had up to that time been gazetted by the Governor
on the nomination of a judge, and the nomination con-
firmed at home by the granting of a commission.-2 Rep.
2d sel'ies~ W. l. C. 24.


Criminal Court.


The first fiscal is the public prosecutor. undel' the
Dutch law, at Berbice; he receives 30,000.guilders per
annum in líeu of ~osts cnargeable by him against the
colony fol' criminal prosecutions. At Demerara, if the
criminal be condemned, and he has the means to satisfy
the costs, the fiscal says he receíves the fee.s from him, but
not otherwise. The Governor, it appears, has the power
of politica custodia, with a view to pl'osecution 01' political
banishment.


The prisoner's couosel, it appeal's, is fUl'Dished with co-
s




-9258 BRITISH GUIANA.
pies of aH the documents to be used at the trial, and a
sight of the originals.-f¿ Rep. f¿d series, W. l. C. 26.


Counsel are assigned to those prisoners, free 01' slaves,
who,· being too pOOl' to fee counsel, apply to the court for
that assistance.--2 Rep. 2d series, W. I. C. p. 27.


A majority of the court, consisting at least of ftve, must
:concur before a criminal sentence can be passed.-2 Rep.
2d series, W. l. C.28.


By virtue of instructions sent out by the King of Eng-
land, in 18f¿1, to the Governors ofboth colonies, no punish-
ment can now be inflicted there which cannot be infficted
·under the English law.-2 Rep. 2d series, W. l. C. 29.


The sentence of the court in an capital cases, at Deme-
rara, is communicated to th8 Governor before being
carried into execution. In cases of severe corporal
punishment this was not considered necessary, unless re-
quired by the Governor; bu~ since the aboye mentioned
order, prohibiting punishments not aHowed by the Eng-
lish law, the fiscal said he conceived it to be necessary"
that the Governor should be made acquainted with the
nature of such sentence, and stated his determination to
act accordingly. At Berbice, it will be remembered, that
the Governor is president of the criminal court.


In the Governor, as representative ofthe King, is lodged
the powel' of repl'ieve; he has also, by his instructions, the
power of pardoning in aH cases except for treason 01' mur-
der.-2 Rep. f¿d series, W. I. C. 30.


Orpkan Ckamber.


The duties of this department, as stated by the exami-
nants at Demerara~ consist in ta~ing possession of the
property .of persons dying intestate and other unrepre-
sentedpr<>perty,and admínistering thé saméfor the·benefit
of· the creditors and heirs. At Bel'bice . the power is
claimed of having the superintendence ofminor orphans,
and over such persons as have become 01' are considered by
the honourable council of government incapable of ma-
naging theil' own concerns, as also ovar all estates which
devolve to it ah intestato.


The duties of the Orphan Chamber lit Berbice are
executed by five members with a greffier (01' secretary),


.. and atDemerara by a president, two members amI a




BRITISH GUIANA. ~59
greffier. The orphan board at Demerara is stated by
,the examinants to be under the superintendence of the
court of justice, by which its members are elected for the
term of two years. At Berbice the members are chosen
by, and are undel' the control of the Governor and Conn-
cil; they serve for a period of four years.


When estates faIl nnder the administration of this board
at Demerara, the practice is stated to be to insert in the
Gazettes of this colony, and of London and Amsterdam,
a notice toan parties interested, to file and substantiate
their claims. Such appears to have be en formerly the
course at Berbice; but the greffier of the board informed
the commissioners, that a1though such notice is always in-
serted in the English and colonial Gazettes, its publica-
tion in the Dutch Gazettes had fallen into disuse.-2 Rep.
2d series, W. l. C. 31.


Wills.


lt appears that the aneient Iaw of distribution aridde-
seent ab inteslatM, as it prevaileü in North Holland, is in
force in these eolonies, and that there is no distinetion in
this respeet between personal and real property. Neither
does it appear from these answers, that any complaint is
made of the rules of deseent 01' the power of disposing of
property by will in the colonies. In fact, it will be ob-
served, that the power given the parent of disposing of
two-thirds of his property by will, when he has not more
than four children, 01' of half, if they exceed that number,
is mueh better adapted to the present state of soeiety than
the restriction by the SpanishJaw at Trinidad of the pa-
rent to one fifth.


The mode of proving private wills. (i. e. wills not drawn
or attested by a notary,) in these colonies is very simple,
as they are merely exhibited to the Colonial Secretary for
registration, and deposited with him, when, on seeing that
the will has the proper number of witnesses affixed to it,
he registers it, and gives off a grosse 01' notarial eopy,
which copy is received in the eourt as evidence. No fur-
ther proceedings take place until a question really arises
upon the validity of the will so registel'ed, when it is de-
termined before thc court upon a regular pleading.


The solemnities requisite to the validity of a will in
these colonies, are, that it should be signed in the pre-


s 2




260 BRITISH GUIANA.
sence of seven witnesses, males, 01' in the presence of a
notary and two other witnesses.-2 Rep. 2d series, W. I.
C.34.


Mortgages.
The doctrine of the Roman law, in these colonies, ad-


mits of tacit 01' legal mortgages, that is, mortgages without
deed, and consequentIy unregistered. The ancient prac-
tice of securing debts due to the state, by the fiscal
seizing, on the part of the Sovereign, the property of the
debtor, in the way of an extent, was found so oppressive
that their High Mightinesses regu1ated this proceeding by
a placaat, authorizing the judge of the bankrupt's domi-
cile to settle and rank the preferences and priorities of tlle
c1aims of the several creditors, incIuding those of tlle state,
by the regular judgment of prre and concurren ce, ordi-
nario modo, retaining the privilege of the sovereign to a
preference when pl'operly established.-2 Rep. 2d series,
W. J. C. 35.


Prce et Concurrentim.
This is a process by the Dutch law to rank tlle


c1aims and priorities of creditors on the real 01' personal
estate of their debtors, when taken in execution 01' dis-
tributed under the control of the court. Great complaints
have always been made in Europe by foreign creditors and
mOl'tgagees, of the delays cxperienced in the judgments of
the prre and concurrence. The causes of their complaints
may easily be remedied.-9 Rep. 2d series, W. I. C. 36.


Bankruptcy.
It appears that there are no banbupt laws in force


in these colonies similar to those in England, nor any
law by which thedebtol' can obtain a complete dis-
charge. He is therefore obliged, in cases of insolvency,
to have reCOUl'se to the cessio bonorum, which is a writ
issuing from the sovereign 01' those to whom he has dele-
gated that power, and is granted ex debito justitice, on the
petition of the suhject. The writ of cessio bonorum has
neal'ly the same effect as thc Insolvent Act in England,
with the cxception, however, that it is regu1atcd by com-
Illon 1aw, and not 1ikc tilc latter by statute, aml is on1y


,


~




BRITISH GtrIANA.


conditional in the fil'st instance, being gl'anted with com-
mittimus to the judge of the debtor's domicile for final
confirmation 01' rejection after hearing of the cl'editors.


At Berbice, which deserves serious consideration, it
appears that a certificate duly obtained by the bankrupt
in England would not protect him in these colonies against
the claim of a colonial creditor who had not proved his
debt un del' the English commission, but that the bank-
rupt would still be liable, although it is stated that the
comt at Berbice would give effect to the assignment.-~
Rep. ~d series, W. l. C. 37.


It appeal's that a colonial creditor, notwithstanding a
pl'evious and existing commission of bankruptcy in Eng-
land, would still be at liberty, on obtaining a judgment
against the bankrupt at Berbice, to attach and levy upon
his property there, provided the commission and assign-
ment thereunder had not been placed on record in the
colony at the time.-B Rep. ~d series, W. J. C. 38.


On this subject see also ante,,96, 97, and the report of
Odwin v. Forbes, d~cided in Demerara, and published in
MI'. Henry's Tract on Foreign Law, London, 1823.


Costs.
The present moJe of taxing costs at Demerara was, it


appeared, by the president's secretary, of which no com-
plaints were made by the inhabitants to the commissioners
while in the colony. At Berbice costs were taxed before
the president after intimation to the opposite party, who
had a power of appealing to the comt.-2 Rep. ~d serie:>,
W. l. C. 38.


Appeals.
It appears that an appeal to the King in Councillies


from the courts in these colonies, where the matter in liti-'
gation exceeds o€5GO sterling (which sum is calculated at
Berbice at twelve guilders to the pound sterling), and
that the costs of the suit are not added to the principal.


By the colonial regulations the appeal should be noted
in the office of the secretary of tIJe court within fourteen
days from the date of the sentcnce, otherwise execution
may issue; after which noting of appeal it is the practice
to petition the Governor, as Hís Majesty's representative,
for leave to appea], and an order to take out authentic
copies of the papers in the cause from the secrctary's




BRITISH GUIANA.


office. The amount of the security generalIy required at
Berbice for the due prosecution of the appeal, and to an-
swer the condemnation of the Court of Appeal, is i'500
sterling. No appeal is allowed from any plea 01' exception
termed in the Dutch lawinnominate, that is not peremp-
tory, nor from any interlocutory 01' provisional sentence, if
reparable on the definitive sentence, or on the merits.


At Demerara, it appears that personal security in
appeal, if good and sufficient, is accepted.-!2 Rep. !ed
series, W. l. C. 39, 40.


Arbitrations.
The submission to arbitration is by a mode of proceed-


ing in the Dutch law, termed an act of willing condemna-
lían, rendered equally binding on the }larties with a rule
of court in England under the statute of William & Mary ;
for under this mode of proceeding the parties appear
before· two commissio1íers of the court, and consent to
be condemned by the sentence of that court to abide by
the award. And on the arbitrators having submitted the
award for the confirmation of the court, this sentence of
confirmation enables the party to proceed in execution.-
2 Rep. 2d series, W. l. C. 40.


-


The following is the authority by which the three colo-
nies of Demerara, Essequibo, and Berbice were united
under one government:-


Copy 01 the Commíssion rif Major-General Sir Benjamín D' Urban,
K. C. B., as Governor and Commander-in-Chilif 01 British
Guiana; dated 4th March, 1831.


WILLIAM R.
W iLLlAM THE :FOUR'fH, by the Grace of God, of the United Kingdom of
Great Britain and Ireland Ring, Defender of the Faith, To our trust y
and well-beloved Sir Benjamin D'Urban, Knight, Commander of tbe
Most Honourable Military Order of the Bath, Major-General of our
Forces; Whereas, for divers good causes to us appearing, we have
deemed it right that our settlements and factories on the northern coast
of the continenl of South America, comprising the united colony of De-
merara and Essequibo and the colony of Berbicc, should henceforth be
.united together, and should constitute one colony, in the manner herein-
áfter provided; Now know you, that we, reposing especial trust and




BRITISH GUIANA. 'Q63
confidence in the prudence, comage, and 10yaJty of you, the said Sir


Benjamin D'Urban,of om special grace, certain knowledge, and mere
motion, have thought fit to constitut~ and appoint, and by these presents
do constitute and appoint you, the said Sir Benjamin D'Urbau, to be,
during our will and pleasure, our Governor and Commander-in-Chief
in and over all our settlements on the northern coast of the continent oí
South America, comprising an such territories and jurisdictions as have·
hitherto been comprised in the said united colony of Demerara and
Essequibo and the said colony of Berbice respectively, with their
respective dependencies, and all forts and garrisons erected and esta.;
blished, or which shall be erected and established withill the same, and
which settlements shall henceforth collectively constitute and 'be one
colon)', and shall be called "The Colony of British Guiana :" And we
do herehy. require and command you, our said Governor, to do and
execute all things in due manner as shall belong to your said command,
and the trust we have reposed in you, according to the several powers
alld directions granted to or appointed you by this present commissiOll'
and the instructions herewith given to yon, or according to such further
powers, instructions, and authorities as 'shall at any future time be
granted to or appointed for you under OUl' signet and sign manual, or
by our order in out Privy Council,or by us through one of our principal
Secretaries of State: And we do further grant, direct, and appoint
that the form of civil govemment heretofore by law established in the
said united colony of Demerara and Essequibo, shall be and the same
is hereby established in and througbout tite said co100y of British
Guiana, and that aH such bodies politic and corporate as have hereto-
fore lawfully existed in the said united colony of Demerara and Esse~
quibo, shall in like manner exist in and throughout the saia colony of
British Guiana, an'll ,shall in and throughout the said colony have,
exercise, and enjoy all such powers and authorities as have heretofore
been lawfully had, exercised, and enjoyed by them respectively in the
unÍted colony of Demerara and Essequibo: Provided nevertheless, and
we do hereby declare our will to be, that the number of the members of
certain of the said bodies poli tic and corporate heretofore existing in the
said united colony of Demerara and Essequibo, shall in tbe said colony
of British Guiana be augmented and enlarged in such manner as by
your said instructions is directed in that bebalf: Provided also, and
we do furtber declare our pleasure to be, tbat notbing herein contained
ahall extend, revoke, or abrogate any law or lawful usage, or custom now
in force in the said united colony of Demerara and Essequibo, or in the
said colony of Berbice respectively, save only in so far as relates to tbe
separate constitution abd form of civil government heretofore established
and in use in the said colony of Berbice, which said constitution or
form of civil government we do hereby abrogate and dissolve, and do




'2'64 BR1TISH aUJAN A.
declare that the same hath become and shall henceforth be extinct and
merged in the government of the saidcolony of British Guiana: Pro_
vided also, and we do further declare our wiU and ploeasure too be, that
nothing herein contained extends or shall be construed to extend in
anywise to alter or interfere with the provisions of a certain Act of Par-
liament passed in the fifth year of the reign of our late Royal Brother
and predecessor King George the Fourth, intituled, "An Act to conso-
lidate and amend the Laws for the Abolition of the Slave Trade," or to
render legal any transfer or removal of any slave which would have been
iIlegal if these presents had not been made, it being our pleasure that
for the purposes and within the rneaning of the said Act of Parliament,
the said united colony of Demerara and Essequibo, and the said colony
of Berbice, shall still continue and be distinct and separate colonies:
And we do hereby give and grant to you, the said Sir Benjamín D'U rban,
full power and authoríty, with the advíce and consent of the Court of
Policy of our said colony of British Guiana, to make, enact, ordain, and
establish laws for the order, peace, and good government of our saíd
colony, subject, nevertheless, to an such rules and regulations as by your
said general instructions we have thought fit to prescribe in that
behalf: Provided, nevertheless, and we do hereby reserve to ourselves,
our heirs and successors, our and their undoubted right and authority
to disallow any such laws, and to make and establish from time to time,
with the advice and consent of Parliament, or with th,e advice of our or
their Privy Council, al! such laws as may to us or them appear neces-
sary for the order, peace, and good government of the said coJ.¡¡ny, as
fully as if these presents had not been made: And we do hereby grant
to you, the said Sir Benjamin D'Urban, the custody of the public se al
appointed for the sealing of al! things whatsoever that shal! pass the se al
of our said colony: And we do hereby give and ,grant to you, the said
Sir Benjamin D'Urban, fuIl power and authority, inour name and in
our behalf, but subject nevertheless to such provisions as are in that
!espect contained in your said general instructions, to make and execute
in our llame and under the public seal of oUr said colony, grants of
waste lands to us belonging within the said colony to private persons
for their own use and benefit, or to any persons, bodies politíc or cor-
porate, in trust, for the public uses of our subjects there resident, or any
of them: And we do hereby give and grant unto you full power and
authority, as you shall see occasion, in our name and in our behalf, to
remit any fines, penalties, or forfeitures which may accrue or become
payable to us, so as the same do not exceed the sum of 1:50 sterling in
any one case, and to res pite and suspend the payrnent of any such fine,
penalty, or forfeiture exceeding the saíd sum of 1:50, untíl ou\' pleasure
therein shall be known and signified to you: And we do hereby give
aud grant. unto you fuIl power and a\lthority, as you shall see occasion¡




BRITISH: GUIAN A. 265
in our ,name and in our behalf, to grailt to any ofrender convicteu of any
crimc in any court, or before any judge, justice, or magistrate within our
said colony, a free and unconditional pardon, or a pardon subjeet lo
such conditions as by any law in force in the said colony may be there-
unto annexed, or any res pite of the execution of the sentence of any such
ofrender, for such period as to you may seem fit: Provided always, that
in cases of treason or murder, no pardon, either absolute or conditional,
be granted until the case shall have been first reported to us by you for
our information, and you shall have received the signification of our
pleasure therein: And we do hereby give and grant unto you, the said
Sir Benjamin D'Urban, _as such Governor as aforesaid, full power and
authority, upon sufficient cause to you appearing, to suspend from the
exercise of his office within our said colony any person exercising any
such office under or by virtue of any commission or warrant granted or
to be granted by us, or in our name or under our authority, which sus-
pension shall continue and have efrect only until our pleasure therein
sball be signified to you: And we do bereby strictly require and enjoin
you, in proceeding to any such suspension, to observe the directions in
that behalf given to you in and by our said general instructions aecom-
panying thia your commission: And in case ofyour death or absence from
lhe said colony, our will and pleasure is, that this our commission, and
the several powers hereby vested in you, shall be exercised by such
person as may by us be appointed to be our Lieutenant-Governor of our
said colony, or by such person as may be appointed by us under our
sighet or sign manual, to administer the said government; but if at the
time of such your death 01' absence, there shall be no person within our
said colony commissioned to' be su eh Lieutenant-Governor, or adminis-
trator of the government as aforesaid, then OIU pleasnre is, and we do
hereby direct that the senior officer for the time being in the eommand
of our land forces within our said colony, shaU take upon himself the
administration of the government thereof, and shaU execute this our
commission, and the several powers herein, and in the aforesaid instruc-
tions contained; and if any such offieer shall, during such his adminis-
tratíon of the government, be suspended in the command of our said
forees by any senior offieer, then our pleasure is, that sueh senior officer
shall as sume the administration of the said government, and the exeeu-
lÍon of this our commission, and of the several powers aforesaid, and so
from time to time as often as any sueh case shall arise: And we do
bereby rcquire and command aU offieers, civil and military, and aU other
our subjects, and persons inhabiting our said eolony of British Guiana,
to be obedient, aiding and assisting unto you, or to the offieer adminis-
tcring the said government for the time being, in the execution of this our
commission, and of the powers and anthorities herein contained: And
we do further declare our pleasure to be, that the changes established in




266 BRITISH GUIANA.
the constitution and form of civil government in the said colonies of
Demerara and Essequibo, and of Berbice respectively, by this our como
mission, shall not take effect until this our commission 8ha11 actuaUy
have been by you received in our said colonies or one of them: And we
do hereby declare, ordain, and appoint that you, the said Sir Benjamin
D'Urban, shall and may bold, execute, and enjoy the office and place of
our Governor and Commander-in-Chief, in and over oúr colony of Bri-
tish Guiana, together with al! and singular the· powers and authorities
hereby granted unto you foe and during our will and pleasure. In
witness, &c. &c. Given at oue Court at Brighton, the 4th day of
March, 1831, in the first year of our reign.


By His Majesty's Command.
(Countersigned) GODERlCH.


Shortly after the colonies of Demerara, Essequibo, and Berbice had
been united under one government the following Orders in Council were
issued, abolishiog the aneient courts, and appointing perfectly Ilew
judicial establishments, not ooly for the colony of British Guiana, but
for those of Sto Lucia and Trinidad. At the end of these orders will be
found a suminary of the alterations they have effected in the courts fOl
the administration of justice in British Guiana, and this will be accom-
panied by the l'egulations established by the Governor and Court of
Policy as to the appointment of Assessors and the jurisdiction of infe-
rior Courts.




( ~67 '> )


aUIANA, TRINIDAD, AND STo LUCIA.


-


Copies oj the Orders in Council oj the 23d April and 20th June,
1831,jor the Administration oj Justiee in British Guiana, Tri·
nidad, and Sto Lucia.


At the Court of St. James's, the 23d day of April, 1831 ;
Present, The King's Most Excellent MAJESTY in Council.


1. WHEREAS His Majesty's Court of Criminal aud Civil Justice in
Demerara and Essequibo, and IIis Majesty's Courts of Civil Justice and
of Criminal Justice respectively in Berbice, and I1is Majesty's Courts
of Criminal Trial, aud of First Instauce of Civil Jurisdictiou respectively
in Trinidad, and His l\Iajesty's Royal Court in the island of St. Lucia,
are respectively holden by Judges the majority of whom in each of such
courts are persons unlearned iu tbe law: And whereas it is fit that the
said courts respectively should heuceforth be holden by persons of com-
petent legal education; it is therefore ordered by the King's most
Excellent l\1ajesty, by and with the advice of his Privy Council, that
henceforth the Court oí Criminal and Civil Justice of Demerara aud
Essequibo, and the Court of Civil Justice and the Court of Criminal
Justice of Berbice, and the Court of Criminal Trial, and the Court oC
First Instance of Civil Jurisdiction in the island of Trinidad, aud the
Royal Court of Sto Lucia, shall be respectively holden by and before
three judges aud no more; that is to say, each of the said courts shall be'
holden by aud before'the President for the time being of thé Court oC
Criminal aod Civil Justice of Demerara aud Essequibo, and the Chief
Judge for the time being of Trinidad, and the First President for the
time being of the Royal Court of St. Lucia, or by aod before the persons
who, during the vacancy of any such offices, or during the absence or
incapacity of any of the said judges, may have received a provisional or
temporary appointment to aet as and in the place and atead oC aoy such
judges or j udge.


2. And it is hereby further ordered that no Judge in any of the
several courts aforesaid, and no Vice-President thereof, shall be the
owner oí any slave, or shall have any share or interest in, or any mort.




68 ORDERS IN COUNCIL.
gage or security upon any sI ave, or sball be proprietor of, or have any
sbare or interest or mortgage or security upon, any land cultivated by
tbe labour of slaves, or shall be or act as the manager, overseer, agent,
or attorney or, for, or upon any plantation orestate cultivated wholly or
in part by the labour of slaves.


3. And it is further ordered, that for the purpose of holding the
respective courts aforesaid, the said three judges shall from time to
time repair to the said respective colonies of Demerara, Berbice, Trini·
dad, and Sto Lucia.


4. And it is furtber ordered, that two sessions at the least shall b~
holden in each year in each of tbe said C<'lurts, and tbat the times of
holding such sessions in such respective colonies, and the dnration
thereof in each, shaIl be determined by proclamations to be from time to
time for tbat purpose issued in the said respective colonies by tbe
respective Governors thereof.


5. And it is further ordered, tbat the Govemors of the said respective
colonies shall, and they are hereby anthorized to arrange with each
other the times of holding such sessions as aforesaid in such manner
as may best promote the administration of justice therein, and the com-
mon convenience of the said respective colonies; and in case of any
difference of opinion between such Governors as to the time of holding
any such sessions, or as to the duration thereof, the judgment ofthe Go-
vernor of British Guiana shall prevail and be observed until Bis
Majesty's pleasure therein shaIl have been signified through one of his
principal Secretaries of Sta te.


6. Aild it is further ordered, that in each of the said courts the Pre·
sident for the time being of tbe Court of Criminal and Civil Justice of
Dememra and Essequibo shall preside and take precedence over such
other two judges as aforesaid; and the said Chief Judge of Trinidad
shaIl in like manner, in each of the said conrts, take precedence over
the First President of Sto Lucia.


7. And it is further ordered, that in each of the said courts the said
three judges shall in all civil cases have, possess, exercise, and enjoy
sllch and the same jurisdiction, powers, and authority in every respect
as the present judges of the said COUl'ts now have or lawfully possessj
exercise, or enjoy, and that tbe decision of the majority of such three
judges shall in all civil cases at any time depending in either of the
said courts, be taken and adjudged to be, and shall be recorded as, the
judgment of the whole court.


3. Provided nevertheless, and it is further ordered, that upon the
trial of any persons or person in any of the said courts for any crime or
offence with which they, he, or she may be charged, three assessors
shall be associated to the said three jlldges, in the manner thereinafter
provided for, which assessors shall be entitled to deliberate and vote




ORDERS IN COUNCIL. ~69
with such judges upon the final judgment to be pronounced in every
such criminal case; and no person shaU be convicted of any crime or
offence, or adjudged to suffer any punishment by any judgment or
sentence of any of the said courts, unless a majority of the total number
of such judges and assessors shall in open court vote in favour of suclt
judgment or sentence.


9. And it is further ordered, that in each of the said courts the said
three judges and assessors shall in aH criminal cases have, possess,
exercise, and enjoy such and the same jurisdiction, powers, and authority
in every respeet as the present judges of the said courts now have or
lawfully possess, exercise, or enjoy, and that the decision of the ma-
jority oC the total number of such judges and assessors shall in aH
crimill.al cases at any time depending in any of the said courts, be taken
and adjudged to be, and shall be recorded as, the judgment oC the whole
court.


10. And it is further ordered, that the Governor (lf each of the said
colonies shaJl by proclamations to be by him from time to time for that
purpose issued within the same, make and prescribe such rules and
regulations as may be necessary to determine the q ualifications of such
assessors, the mode of convening them, the penalties to be infticted on
persons refusing to act as such assessors when thereunto lawfully re-
quired, and the mode of chalIenging such assessors, and what shall be
lawful ground of challenge, and how the validity of any such challenge
shall be determined, together with every other matter and thing which
may be necessary to the effective discharge by such assessors of the duty
thereby committed to them; and every such proclamatioIl shall forth-
with be transmitted by 3uch Governor for His Majesty's approbation,
and shall in tbe meantime, and unless disallowed by His Majesty, and
until suclt disallowance shall be made known to such Governor, be of
the same force and effect as if the same had been contained in this pre-
sent arder.


11. And it is further ordered, that none ofthe judges nor any Vice-
President .0C either oí the said courts respectively, shall be liable to
challenge or .recusation in or upon any action, suit, or proceeding, civil
or criminal.


12. And it is further ordered, that during the absence of any of the
said judges from the colony to which he may belong, for the purpose
of holding such sessions as aforesaid, the Supreme Court of such colony
shall be holden by a single judge, to-be called the Vice-President of such
court, and it shall be the duty of such Vice-President to hear and
determine all such interlocutory matters arisifg in or upon any civil or
criminal suit, action, or proceeding depending in the said court, as may
be brought befo re him, and also to inquire into and report to the said
judges in any such sessions as aforesaid upon any questions which may




270 ORDERS IN COUNCIL.
by such judges at such their sessions have been specially referred to any
such Vice·President; and in the exercise of such jurisdiction, such
Vice-President shaH and he is hereby required to conform himself to
and observe any such general rules or orders of court as may be made
for his guidance in the manner hereinafter mentioned.


13. And it is further ordered and declared, that it shall be lawful for
the said Supreme Courts respectively to review, re verse, correct, or
confirm, as occasion may require, any judgment, sentence, rule, or order
which may be made, given, or pronounced by any suth Vice-President
as aforesaid, in the exercise of the jurisdiction hereby vested in him, and
that in the exercise of such jurisdiction, sllch Vice-President shall act
alone and without any colleague or assessor, and shalI have aU such and
the same powers and authority in that behalf as now are or is vested in
the said courts respectively for the said respective purposes.


14. And it is further ordered, that it shall and may be lawful for the
judges of the said courts respectively, and they are hereby authorized
and required to make and establish such rules, orders, and regulations
as to them shall seem meet concerning the forms and manner of pro-
ceeding to be observed in the said courts respectively, and the practice
and pleadings in aU actions, suits, and other matters, both civil and
criminal, to be therein 'brought, and concerning the duties and juris.
diction of the said respecti.ve Vice-Presidents, and concerning the
proceedillgs of the executi ve and ministerial offices of the said courts
respeetively, and concerning the process of the said courts, and the mode
of executing tbe same, and concerning the admission of advocates, bar-
risters, attornies, solicitors, notaries, and proctors in the said courts
respectively, and concerning aU other matters and things which relate to
the conduet and dispatch of business in the said respective courts; and
all such rules, orders, and regulations, from time to time, to revoke,
alter, amend or renew as occasion may require. Provided always, that no
such rules, orders, or regulations shall be repugnant to tbis present
ord~r, and that the same shall be so framed as to promote, as far as may
be, economy and expe4ition in the dispatch of the businessof tJle said
courts respectivel:!" and that the same be drawn up in plain, succinct,
and compendious terms, avoiding aU unnecessary repetitions' and
obscurity, and be promulgated in tbe most public and authentic manner
in the colonies to which the same may respectively refer, for. fourteen
days at least before the same shall be binding and take effect therein;
and provided also that al! such rules, orders, and regulations shaU
forthwith be transmitted to Bis Majesty, under the seal of the court, by
the Governor for the time being of such colony, for his approbation or
disaIlowance.


15. And whereas it may be expedient to establish within the said
colonies courts having jurisdiction in civil cases of small amount and in




ORDERS IN COUNCIL.


cases of breaches of the peace, assaults, and other petty offences; it is
therefore further ordered, that it shall be lawful for the Governor of each
oC the said colonies respectively, with the advice of the Court of Policy
in the said colony in British Guiana, and with the advice of the Conncil
of Government in the said colonies of Trinidad and Sto Lucia, by any
law8 and ordinances to be from time to time made for that purpose, to
erect, constitute, and establish courts having jurisdiction in civil and
criminal cases within the said respective colonies, provided that the
jurisdietion of sucb Civil Courts shall not be extended to any case
wherein the sum or matter in dispute shall exceed the amount or value
of .t:20 sterling money, or wherein tite title to any lands or tenements,
01 the title of any person to his or her freedom, or any fee, duty, or
office may be in question, or whereby rights in future may be bound;
and provided also, that the jurisdiction of such courts in criminal cases
shall not be extended to any case wherein any person may be aecused
of any crime punishable by death, transportation, or banishment; and
that it shall not be lawful for any sueh Criminal Court to infiict any
greater or other punishment than imprisonment, with or without hard
labour, for a term not exceeding three months, or fine not exceeding
1:20, or whipping not exceeding thirty-nine strip es, or any two or more
such punishments within the limits aforesaid.


16. And it is further ordered, that the Judges of the said Supreme
Courts of the said colonies respectively shall be and they are hereby
authonzed to make, ordain, and establish aU necessary rules, orders, or
regulations respecting the manner and form of proeeeding to be observed
in the said Petty Courts, and respecting the manner and form of carry-
ing the judgments and orders of such courts into execution, with a1l
such other rules, orders, and regulations as may be necessary for giving
full and perfect elfeet to the jurisdiction of such courts respectively, and
such rules, orders, and regulatiollS from time to time to revoke) alter, and
renew as oceasion may require.


17. And it i8 hereby further ordered, that it shall and may be lawful
fOl any person or persons, being a party or parties to any civil suit or
action depending in any of thesaid Supreme Courts .0C any oC the said
colonies, to appeal to His Majesty, his heirs andsuccessors, in his or
their Privy Couneil, against any final judgment, deeree, or sentence of
any of .the said courts,or against any rule or order made in any sueh
civil suit or aelion having the effect of a final or definitive sentence, and
which appeals shall be made subject to the rules and limitations follow-
ing; that is to say, in case any such judgment, decree, order, or sentenee
shall be given or pronounced for or in respeet of any sum or matter at
issue above the amount or value of ;f500 sterling; or in case such
judgment, decree, order, or sentence shall involve, directly or indirectly,
any c1aim or demaDd to Ol question respecting property or any civil




ORDERS IN COUNCIL.


right amounting to 01' of the value of .f500 sterling; 01' in case such
juclgment, decree, order, 01' sentellee shall determine 01' atreet the right
of ally person to his 01' her freedom, the person 01' persons feeling
aggrieved by any sueh judgment, decree, order, 01' sentenee may, within
tourteen days next after the same shall have been pronounced, made, or
given, apply to such court by petition fol' leave to appeal therefrom to
His Majesty, his heirs, and suecessors, in his 01' their Privy Council;
and in case sueh leave to appeal shall be prayed by the party 01' parties
who is 01' are directed to pay any sum of money or perform any duty,
such Supreme Court shall and is hereby empowered either to direct
that the judgment, deeree, order, or sentenee appealed from shall be
earried into execution, or that the execution thereof shaU be suspended
pending the said appeal, as to the said court may in each case appear
to be most consistent with real and substantial justice; and in case
sueh Supreme Court shall direet sueh judgment, decree, arder, 01' sen-
tence to be carried into execution, the person 01' persons in whose favour
the same shall be given, shall, before the exeeution thereof, enter into
good and sufficient security, to be approved by the said Supreme Cour!.
for the due performance of su eh judgment 01' arder as His Majesty, his
heirs and suceessors, shall think fit to make thereupon; 01' in case the
said Supreme Court shall direct the exeeution of any judgment, deeree,
order, 01' sentenee to be suspended pending the said appeal, the person
al' persons against whom the same shall have been given, shaU in like
manner, upon any order for the suspension of any sueh exeeution being
made, enter into good and suffieient security, to be approved by the said
Supreme Court, for the due performance of such judgment or order as
His Majesty, his heirs, and successors, shall think fit to make thereupon;
and in all cases security shall also be given by the party 01' parties
appellant, to the satisfaetion of such court, fol' the proseeution of the
appeal and for the payment of all such eosts as may be awarded by His
Majesty, bis heirs and successors, to tbe party al' parties respondent;
and if such last-mentioned security shall be entered into within three
months from the date of such petition for leave to appeal, then, and not
otherwise, the said Supreme Court shall allow the appeal, and the party
01' partíes appellant shall be at liberty to prefer and prosecute bis, her,
or their appeal to His Majesty, his heirs, and suceessors, in His al'
their Privy Council, in such manner and under sueh rules as are
observed in appeals made to His Majesty in Council from his planta-
tions 01' colonies.


18. Provided always, and it is bereby declared and ordered, that
nothing herein contained doth 01' shall extend, 01' be construed to ex-
tend, to take away or abridgc the undoubted right or authority of His
Majesty, bis heirs and suecessors, to admit and receive any appeal from
any judgment, deeree, sentence, al' order oc. any of the said Supreme




ORDERS IN COUNCIL. 273
Comts, on lhe humble petition of any person 01' persons aggrieved
thereby, in any case in which and subject to any conditions or l'estric-
tions upon and under which it may seem meet to His Majesty, his
heirs and successors, so to admit and receive any such appeal.'


19. And it is fmther ordered, that in aH cases of appeal allowed by
any of the said Supreme Courts, or by Bis Majesty, his heirs and suc-
cessors, such court shall, on the a pplication and at the costs of the
party or parties appellant, certify and transmit to His Majesty, his
heirs and successors, in his or their Privy Council, a true and exact copy
of aH proceedings, evidence, judgments, decrees, and orders, had or
made in such causes so appealed, as far as the same have relation to
the matter of appeal, such copies to be certified under the sea! of the
said court.


20. And it is further ordered, that the said Supreme Courts respee-
tively shall, in al! cases of appeal to IIis Majesty, his heirs and sueces.
sors, conform to, execute, and carry into immediate effect such judgments
and orders as His Majesty, his heirs and successors, shall make there-
upon, in such manner as any original judgment or decree of the said
Supreme Court can or may be executed.


21. And whereas there are in the said courts, or sorne of them, divers
unnecessary officers, being or claiming to be entitled to fees of large
amount for services ~y them rendered to suitors and others concemed
in the proceedings of the said courts, to the great charge of His Ma-
jesty's subjects, and to the obstruction of the due administration of
justice; it is therefore hereby ordered, that the office of Sworn-Account-
ant, as at present existing in Demerara and Essequibo, and in Berbice
respectively, shall be the same and is hereby abolished, and that the du-
ties heretofore performed by such sworn-accountants shall henceforward,
but subject to the rules of court to be made as hereinbefore mentionedJ
be performed by the Vice·President of the Court of Criminal and Civil
Justice of Demerara and Essequibo, and by the Vice-President of the
Court of Civil J ustice and of the Court of Criminal J ustice of Berbice :
and it is hereby further ordered, that the office of Father-Heneral of
Minors, and the office of Defender of the .Absent, and the office of
Depositario-General, and the office of Taxador, and the office oC Judicial
Referee, Liquidator, and Partidor, as at present existing in the said
island ofTrinidad, shall be and the same are hereby respectively abo-
lished; and that the duties of the offices of the ~aid Judicial Referee,
Liquidator, and Partidor and Taxador, shall henceforward, but subject
to the rules of court to be made as hereinbefore mentioned, be per-
formed by the Vice-Presidimt of the Court of First Instance of Civil
Jurisdiction ofTrinidad: and it is further ordered, that the office of
Curateur aux Successions Vacantes, and Regisseur des Biens des
Absens, as at present existing in Sto Lucia, shall be and the same is


T




~74 BRITISH GUIANA.
hereby abolíshed; and that the dutíes heretofore performed by that
officer shall henceforward, but subject to the rules of court to be made as
hcreinbefore mentíoned, be performed by the Vice-President of the
Royal Court of the- Island of Sto Lucia.


'22. And whereas various jurisdictions have heretofore been exercisell
by certaín courts in the island of Trinidad, which by reason of the
changes introduced into the administration of justíce therein, it is no
longer necessary to retain; it is therefore hereby ordered, that the se-
veral courts or tribunals following, that ís to say, the Court of Criminal
Inquiry, the Comt of Audiengia, the Complaint Comt, the Court of
the Alcaldes in Ordinary, and the Court of the Alcaldes de Berrio, and
all offices in and connected with the said courts respectively, shall be
and the same are hereby respectively abolished.


23. And it is hereby further ordered, that all orders heretofore made
by His Majesty, or by any of his royal predecessors in his or their Privy
Council, and aH laws, customs, and usages now or at any time hereto-
fore established or in force in any of the said colonies, so far as such
orders, laws, or usages are in anywíse repugnant to or at variance with
this present order, shall be and the same are hereby revoked, abrogated,
rescinded, and annulled.


24. And it is further ordered, that for the purpose and within the
meaniog of the present order, any person lawfully administering for the
time being the government of the said colonies shall be deemed and
ta,ken to be the Governor thereof.


(Signed) C. C. GREVILLE.


-


At the Court of Sto James's, the 20th day of June, 1831;
Present, THE KING'S 1\Iost ExcelJent MAJESTY in Council.


1. WHEREAS, on the 23d day of April, 1831, an order was made by
Bis Majesty, with the advice of his Privy Council, for improving the


, administration of justice in His Majesty's colonies of Br~tish Guiana,
'Trinidad, and Sto Lucia; and for that purpose it was thereby ordered,
that the Chief Judges of the said three colonies should froro time to time
repair to the said colonies, for the purpose of holding in succession
therein the Supreme ~ourts of sueh colonies respectively: And whereas
unforeseen difficulties may arise to delay the execution of the said
order, and it may be necessary to make provision for the admioistration
of justice thereín; in the mean time it i8 hereby ordel'ed by the King's
Most Excellent Majesty, by and wíth the advice of his Privy Couocil,
that it shall and may be lawful fol' the Governors for tbe time being of
the said colooies of British Guiana, Trinidad, and Sto Lucia, or fOl any




ORDERS IN COUNCIL. ~75
two of them, by a proclamation to be by them issued in His Majesty's
name in the said respective colonies, to suspend the execution of the
said order of the 23d day of April, 1831, and the same shall thereupon
be and remain suspended, until His Majesty's further pleasure shall be
signified to the said respective G.overnors.


2. And it is further ordered, that during any such suspension of the
said order of the 23d day of April, 1831, and no longer, the rules,
orders, and regulations hereinafter made and contained shall be observed
in the administration of justice in the said respective colonies; that is
to say, in the first place, it is ordered, that henceforth the Court of Cri-
minal and Civil Justice of Demerara and Essequibo, and the Court of
Civil Justice, and the Court of Criminal Justice of Berbice, shall hence-
forth be holden by and before three judges and no more, and that the
first or presiding judge of tIle said court sha]] be called and bear the
sty le and title 01" Chief J ustice of British Guiana, and that the second
and third of such judges shall be called and bear the respective styles
and titles of First Puisne Judge and Second Puisne Judge of British
Guiana.


3. And it is further ordered, that the court for the trial of criminal
prosecutions, and the Court of First Instance of Civil J urisdiction in the
island of Trinidad, sball benceforth be holden by and before tbree judges
and no more; and that the first or presiding jurlge of the said court sha11
be called and bear the style and title of Chief Justice of Trinidad, and
that the second and third of such judges shall be called and bear the
respecti ve styles and ti tles of First Puisne J udge and Second Puisne
J udge of Trinidad.


4. And it is furtber ordered, that the Royal Court of Sto Lucia shall
henceforth be holden byaud before three judges and no more; and that
the first or presiding judge of the said court shall be called and bear the
style and title ofCbief Justice of Sto Lucia, andthat the second and third
of suchjudges shall be called and bear the respective styles and titles of
First Puisne Judge and Second Puisne Judge of Sto Lucia.


5. And it is furtber ordcred, that wbenever and so often as tbe oflice
of any chief justice or puisne judge of any of the said colonies shall
become vacant by the death, absence, incapacity, resignation, suspen-
sion, or removal of any such chief justice or judge, tbe Governor of such
colony for the time being shall be and is hereby authorized to supply
and fill up such vacancy by the appointment of sorne proper person, by
a commission under the public seal of such colony, which commission
shall be made to continuc in force only until His Majesty's pleasure
sha11 be known.


6. And it is bereby further ordered, that none of the said judges of
any of the colonies aforesaid shall be tbe owner of any slave, or shall
have any share or interest in, or any mortgage or security upon any


T2




276 BRITISH liUIANA.
slave, or shaJl be propl'ietor of, or have any share 01' interest in, 01' mort-
gage 01' security upon any land cultivated by the ¡abour of slaves, 01'
shall be ol' act as the manager, overseer, agent, 01' attorney of, for, 01'
upon any plantation or estate cllltivated whoJly 01' in part by the labour
of slaves.


7. Pr¿vided nevertheless, that nothing herein contained shall prevent
any such judge from acquiring any such property 01' interest as afore-
said under any legal process, for the l'ecovery of any debt or demand, 01'
by testamental'y or other succession, inheritancc, donation, 01' other in-
voluntary title, but all such property 01' interest as aforesaid which any
such judge may so acquire, shall, within one calendar month next after
the acquisition thereof, he by him CQJPmunicated to the Governor of the
colony, and shall be alicnatcd and disposed of within six calendar
months, unless llis Majesty shall in any case be pleased to grant to any
such judge a 10nger period for effecting any such alienation or disposal
thereof.


8. And it is further ordered, that in each of the said courts respec-
tive1y, the said three judges of the said respective colonies shalJ in all
civil cases have, possess, exercise, ana enjoy such and the same juris-
diction, powers, and authority, in every respect, as the judges ofthe said
courts bave heretofore lawflllIy possessed, exercised, 01' enjoyed; and
that the decision of the majority of such three judges shaJl in all civil
cases at any time depending in the said respective courts, be taken and
adjudged to be, and shall be recorded as the judgment of the whole
of such court.


9. And it is further ordered, that upon the trial of any person or
persons in any of the said eourts respectively for any crime 01' offence,
three assessors shall be associated to the said three judges, in the man.
ller hereinafter provided for, which assessors shall be el1titled to de.
liberate and vote with such judges upon the final judgment to be
pronounced in every such criminal case, 01' no person shall be convicted
of any crime or offence, or adjudged to suffer any punishment by any
judgment or simtence of any of the said courts, unless a majority of the
total number of such judges and assessors shall in open court vote il\
favour of such judgment 01' sentence.


10. And it is nll'lher ordered, that in each of the said courts the said
three judges and assessors shall in an criminal cases have, possess,
exercise, and enjoy such and the same jurisdiction, powers, and
authority in every respect as the judges of the said courts respectivel)'
have heretofore lawfully possessed, l!'xercised, and enjoyed, and tbat the
decision of the majority of the total number of such judges and assessol'S
shall in all criminal cases at any time depending in any of the said
courts, be taken and adjudged to be and shall be recorded as lhe judg.
ment of the whole court.




ORDERS IN COUNCIL. Q77
11. And it is furthel' ordered, that it shall be lawful for the judges of


any of lhe said courts respectively to reserve the consideration of any
questioll of law arising upon any such criminal trial as aforesaid, and
to make order for the suspension 01' arrest of the judgment or sentence
of the court, until the decision of such question of law, whicn shall be
adjudged and decided by such judges alone, and without the concur-
rence or interference of such assessors therein.


12. And it is hereby furtRer ordered, that the assessors of the said
COUl'ts in Demerara and Berbice shall be chosen and appointed in such
and fhe same manner as the members of the Court of Civil and Criminal
J ustice ofDemerara have heretofore becn chosen and appointed; and that
the assessors of the said court for the trial oC criminal pro~ecutions in Tri-
nidad shall be chosen and appointed from and out of the members oC the
Cabildo of the town of Port of Spain in lhe said island; and that the
assessors of the said Royal Court of Sto Lucia shall be chosen and ap-
pointed in such and the same manner as the membcrs of that court,
other than the First President, have heretofore been chosen and ap-
pointed.


13, And it is hereby further ordered, that none ofthe judges of either
of the said courts shall be liable to challenge or recusation in or upon
any action, suit, or proceeding, civil 01' criminal, but that such assessors
shall be liable to be challenged on such and the like grounds as may be
alleged as lawful ground of challenge against any petit juror impannel-
led for the trial of any indictment in England, and the validity of every
such challenge shaU be decided by the judges jlresiding at any such
trial, without the concurrence or interference of the assessors or any of
them.


14. And it is further ordered, that it shall and may be lawful for Ihe
judges of the said COUl'ts respectively, and they are hereby autnorized
and required to make, ordain, and establish a tariff or table of {ees, to
be had, taken, allowed, and paid by the suitol's in lhe said respective
courts, for and in respect of every sentence, judgment, order, and pro-
ceeding which may be pronounced, made, or had in any suit 01' action
depending therein, 01' which may 01' §h.all be paid or payable to any of
the officers of the said court respectiveiy, 01'_ to any advocate, oarrister,
solicitor, attorney, proctor 01' notary, 01' other pl'actitioner of the law
therein, and which tariff or table offeessha\l, by the Chief J ustice of each
ofthesaid courts respectively, be transmitted to the Governor for the time
being of the colony to which such court may belong; and any su eh
tariff or table being ratified and confirmed by any ordinance to be for
that purpose made by the Governor and Court of Policy of British
Guiana, 01' by the Governor, with tiJe advice and consent of the Council
of Government in lhe said colonies of Trinidad or St. Lucia, shall be
binding upon all persons interested therein; anl! aH pel'sons receiving




278 BRITISH GUIAN A.
any greater or higher or other fee or reward than shall by any such
tariff or table be allowed, shall be liable to refund the same by such
summary process or proceeding as shall seem good to the said eoults
respeetively in that behalf.


15. And it is further ordered, that it shaIl and may be lawful for the
said Governor and Court of Poliey of British Guiana, and for the Go-
vernors of Trinidad and Sto Lucia respectively, with the advicc and
consent of the respective Couneils of Government thereor, by any
ordinances to be by them for that purpose made, to prescribe the form
and manner of proceeding to be observed in the said respective courta
for the prosecution and trial therein of al! persons charged with the com·
mission of any crimes and offences cognizable within the said courts
respectively: provided nevertheless, that every such ordinance shaIl be
transmitted for lIis Majesty's approbation in the manner required by
law in reference to al1 ordinarrcs-passed and enacted in the said
respective colonies.


16. And it is further ordered, that it shall and may be lawful for the
judges of the said courts respectively, and they are hereby authorized
and required to make and establish such rules, orders, and regulations
as to them shal1 seem meet, touching the distribution of the business of
the said courts between the respective judges thereor, and concerning
the forms and manner of proceeding to be observed in the said courts
respectively, and the practice and pleadings in all civil actions and
other civil matters to be therein brought, and concerning the process of
the said courts and the mode of executing the same, and concerning the
admission of advocates, barristers, attornies, solicitors, notaries, and
proctors i}1 the said courts rcspcctively; all which rules, orders, ::md
regulations shall be framed in such a manner as to pro mote, as far as
may be, economy, method, and expedition in the despatch of the
business of the said courts respectively; and the same shall be drawn
up in plain, succinct, and compendious terms, avoiding all unnecessary
repetitions and obscurity, and shall be promulgated in the most public
and authentic manner in the colonies to which the same may respec-
tively refer, for fourteen days at the least before the same shall be binding
and take effect therein.


17. Provided always, and it is further ordered, that no su eh rules, orders,
or regulations as aforesaid be repugnant to this present order, and that
the same be forthwith transmitted under the seals of such respective
courts to the respective Governors of the said colonies respectively, to
be by them transmitted to Iris Majesty for his approbation or dis-
allowance.


18. And whereas there are established within the said colonies, 01'
sorne of them, courts having jurisdiction in civil cases of small amount,
:lnd in cases of breaches uf the pcace alld ollJe¡' petty offences, and it is




ORDERS IN COUNCII .. 279
expedient that provision be made for the beUer administration of justice
in such courts; it is therefore hereby ordered, that no court within any
of the said colonies other than the supreme courts hereinhefore men-
tioned, shall be competent to hold jurisdiction in any civil case in which
the sum nr matter in dispute shall exceed the amount or value of &20
sterling money, or in which the right of any alIeged slave to his or her
freedom, or the title- to any lands or tenements,or any fee, duty, or
office, or His Majesty's Royal Prerogative may be in question, or
whereby rights in future may be bound; and that no court within any
of the said colonies, other than the Supreme Courts aforesaid, sbaU be
competent to hold jurisdiction in any criminal case wherein any per-
son sball be accused of any crime punishable by death, transportation,
01 banishment; and that it shall not be lawful for any court in any of
the said colonies, other than the Su preme Courts aforesaid, to inftict
any greater or other punishment than imprisonment, with or without
hard labour, for a term not exceeding three months, or fine not exceed·
ing &20, or whipping not exceeding thirty-nine stripes, or any two or
more of such kind of punishments together, within the limits aforesaid.


19. And it is further ordered, that it shalI be \awful for the Governor
of British Guiana, with the advice and consent of the Court of Policy
thereof, and for the Governors of Trinidad and Sto Lucia, with the
advice and consent of the respecti.Y,r. Councils of Government thereof,
to establisb, constitute, and erect within the said respective colonies,
inferior courts having jurisdiction in civil and criminal cases within the
limits aforesaid, and for that purpose may abolish any such inferior
courts as may be now existing therein, or modify tbe constitution of
such courts as may be found expediento


20. And it is further ordered, that the judges of the said Supreme
Courts of the said colonies respectively shalI be and they are hereby
authorized to make, ordain, and establish aU necessary rules, orders,
and regulations respecting the manner and form of proceeding to be
observed in the said inferior courts, and respecting the manner and
form of carrying the judgments and orders of such courts into execu-
tion, with all such other rules, orders, ~nd reg',¡\ation~ as may be
necessary for giving full and perfect effect to the jUl'isdictlOn uf such
courts respectively, and such rules, orders, and regulatIons from hme to
time to revoke, alter, and renew as occasion may require; provided
always, that aU such rules, orders, and regulations as aforesaid 811a1l be
promulgated, and shall be transmitted to His Majesty fur bis approba-
tion or disallowance, in tbe manner hereinbefore directed and required
with respect to the rules, orders, and regulations of tIJe said Supreme
Courts.


21. And it is further ordered, that the officc: of Fathel'-General uf
Minors, ancl the office of Defender of the Absent, and the oflice of




280 BRITISH GUlANA.
Depositario-General, as at present existing in the islalld of Trinidad,
sha11 be and the same are hereby respectively abolished; and tha1 the
office of Taxador, and the oflice of Judicial Referee, Liquidator, ami
Partidor, as at present existing in the said island, shall be alld the same
are hereby· consolidated, and shall constitute one oflice.


22. And it is further ordered, that the offices of Curateurs aux Suc-
cess'¡ons Vacantes, and Regisseurdes Biens des Absens, as at presellt
existing in St. Lucia, sball be and tbe same are hereby abolished.


23. And whereas various junsdictions have beretofore been exercised
by certain courts in the island· of Trinidad, which, by reason of tbe
changes hereby introduced into tbe administration of justice there, it is
no 10nger lIecessary to retain; it is tberefore hereby ordered, tbat the
several courts or tribunals following, that is to say, the "Court of Cri-
minal Inquiry," the "Tribunal of Appeal, in a11 cases of condemnation
to deatb," the "Superior Tribunal oí Appeal oí Civil Jurisdiction," the
"Tribunal oC the Royal Andien!;ia," and al! oflices in and connected
with the said courts respectively, shal! be and the same are hereby
respectively abolished.


24. And it is further ordered, that the Court of Sénéchaussée, in the
island oí Sto Lucia; and all offices in and connected with that court,
8ha1l be and the same are hereby abolished; and that the Royal Court
oC the said ¡sland sha11 henceforth have an original jurisdiction in all
causes arising within lhe said islalld, in such and the same manller alld
to 8uch and tbe same extent as such ~inal jurisdiction was heretofore
vested in the said Court oC Sénéchaussée.


25. And it is hereby further ordered, that it shall and may be lawful
for any person or persons, being a party or parties to any civil suit or
action depending in the said Court of Civil and Criminal Justice of De-
merara and Essequibo, or in the said Court of Civil Jnstice of llerbice,
or in the said Court of First Instance of Civil Jurisdietion of Trinidad,
or in the said Royal Court of Sto Lucia, to appeal to His Majesty, his
heirs, ana successors, in his or their Privy Conncíl, against any final
judgment, decree, or sentence, or against any rule or order made in any
such civil suít or aetion, and having the effect of a final or definitive
sentence, and wbich appeals shall be made subject to the rules and
limilations foIlowing: tbat is to say,
, First, Such judgment, decree, order, or sen ten ce sball be given o,
prooounced for or in respeet of a sum or malter at issue above tbe
amount or value of .f500 sterling, or shall involve directly or indirectly
the title to property, or to sorne civil right, amounting to or of the valne
of ,f500 sterling, or sha11 determine or affect the right of sorne alleged
sIave to his or her freedom :


Secondly, The person or persons feeling aggrieved by such judg-
meot, decree, order, or sentenee, sball, wilhin fuurtaen days next after




ORDERS IN COUNCIL. 281
tile same shall have been pronounced, made, 01' givcn. app!y to the
court by petition for leave to appea! therefrom to His Majesty, his heirs,
and suceessors, in his or their Privy Counci! :


Thirdly, If such leave to appeal shall be prayed by the party or
parties who is or are adjudged to pay any sum of money or to perform
any duty, the court shall direct that the judgment, decree, 01' sentence
appealed from shall be carried into execution if the party or parties
respondent shall give security for the immediate perfcrmance of any
judgment or sentence which may be pronounced or made by I1is Ma-
jesty, his heirs, and successors, in his or their Privy Council, upon any
such appeal, and until such security be given, the execution of the
judgment, decree, order, or 'sentence appealed from shall be stayed:


Fourthly, Provided nevertheless, that if the party or parties appellant
shall establish to the satisfaction of the court, that real and substalltial
justice requires that pending such appea! execution should be stayed, it
shall be lawful for such courts to order the execution of such judgment,
decree, ordel', 01' sentence, to be suspended pending such appeal, if the
party 01' parties appellant shall give security fol' the immediate per-
formance of any judgment 01' sentencc which may be pronoullced 01'
made by His Majesty, his heirs, c.ad scccessors, in his or their Privy
Council, upon any such appeal:


Fifthly, In all cases security shall also be given by the party or parties
appellant for the prosecution of the appeal, and fol' the payment of all
such costs as may be awarded by His Majesty, his heirs, and successors,
to the party 01' parties respondent :


Sixthly, The court from which auy such appeal as aforesaid shall be
brought shall, subject to the conditions hereinafter rnentioned, deter-
mine the nature, amount, and sufficiency of the several seaurities 50 to
be taken as aforesaid :


Seventhly, Provided ne\'ertheless, that in any case where the suhjcct
of litigation shall consist ofirnmoveable property, 01' of any slaves, stock,
utensils, or implements, held therewith or attached thereto, and the
judgment, decree, order, or sentence appealed from shall not charge,
affect, or relate to the actual occupation thereof, no securilY shall be
demanded either from the party or parties respondent or from the pariy
or parties appelIant, for the performance of the judgment 01' sentence to
be pronounced or made upon such appeal; but if such judgrnent, de-
cree, order, or sentence, shall charge, affect, 01' relate to the occupation
of any 'Such property, then such' security shaU not be of greater amount
than may be neeessary to secure the restitution, free from all damage 01'
loss, of such stock, utensils, or implements, or of the intermediate profit
which, pending any such appeal, may prooably accrue from the inter-
rnediate occupation of su eh property; aud cach of the said courts is
hereby authorized and lrequired to 5équestrate any such immoveable




BRITISH GUIANA.


property, sIaves, stock, utensils, and impIements, in order still further
to rednce the amount of snch security, if the party or parties by whom
such security is to be given shall make application to such court for that
purpose, and the other party or parties shaIl not show good canse to
the contrary :


Eighthly, In any case where the subject of litigation shaIl consist of
money or other chatteIs, or of any personal debt or demand, the security
to be demanded either from the party or pal'ties respondent, or from the
party or parties appelIant, for the performance of the judgment or sen-
tenee to be pronounced 01' made upon such appeaI, shaIl be either a bond
to be entered into in the amount'or value of such subject of litigation by
one or more sufficient surety or sureties, or such security shall be given
by way of mortgage or voIuntary condemnation of or upon sorne im-
moveabIe property or sIaves (1) situate and being within such coIony,
and being of the full value of such subject of litigation, over and above
the amount of all mortgages and cbarges of whatever nature upon or
affecting tbe same : ~


Ninthly, In any case where the subject of Iitigation sbaIl be the right
of any aIleged sIave to his or her freedom, the amount of the security
for the performance of the judgment or sentenee to be pronounced and
made upon any such appeal, shall in no case exceed the pecuniary value
of such alleged sla ve, and shall be gi ven either by such surety or sure-


. ties, or by such mortgage or voluntary condemnation as aforesaid :
Tenth, TIte security to be given by the party 01' parties appellant for


tbe prosecution of the appeal and for the payment of CQsts, shall in no
case exceed the sum of .í300 sterling, and shaIl be given either by such
surety 01' sul'eties, 01' by such mortgage 01' voluntary condemnation as
aforesaid : I


Eleventh, If the security to be gi ven by the party or parties appellant
for the prosecution of the appeal and for the payment of 8uch costs as
may be ai.varded, shall, in manner aforesaid, be completed within tbree
months from the date of the petition for leave to appeal, then, and not
otherwise, the court from which such appeal is brought shall make an
order allowing such appeal, and the party or parties appellant sbalI be
at liberty to prefer and prosecute his, her, or theil' appeal, to His Ma-
jesty, bis heirs, and successors, in his or their Privy CounciI, in such
mallner and under such rules as are observed in appeals made to His
Majesty in Council from the plantations or colonies :


Twelfth, Provided nevertheless, that any person or person; feeling
aggrieved by any order which may be made by, or by any proceeding
of any of the said courts l'especting the security to be taken upon any


(1) See post, (he Slavefy Abolition Act, ss. 9 and 10.




ORDERS IN COUNCIL. 283
such appeal as aforesaid, shall be and is hercby authorized, by petition
to His Majesty in Council, to apply for redress in the premises.


Provided always, and it is hereby further ordered, that nothing herein
contained doth or shall extend or be construed to extend to take away
or abridge the undoubted right or authority of Bis Majesty, his heirs,
alld successors, to admit and receive any appeal from any judgment,
decree, sentence, or order of ally of the said Supreme Courts, on the
humble petition of any person or persons aggrieved thereby, in any case
in which, and subject to any conditions or restrictions upon • and under
which it may seem meet to His Majesty, his heirs, and successors so to
admit and receive any such appeal.


26. And it is further ordered, thl\t in aU cases of appeal allowed byany
ofthe said Supreme Courts or by His Majesty, his heirs, and succes-
sors, such court shaU, on the application and at the costs of the party or
parties appellant, certifyand transmit to His Majesty, his heirs, and
successors, in his or their Privy Council, a true and exact cop-y of aU
proceedings, evidence, judgments, decrees and orders had ar made in
such causes so appealed, so far as the same have relatian to the matter
of appeal, such copies to be certified under the seal of the said court.


27. And it is further ordered, that the said Supreme Courts respec-
tively shall in aU cases of appeal to His Majesty, his heirs, and succes-
sors, execute and carry into immediate effect such judgments and orders
as His Majesty, his heirs, and successors, shall make thereupon, in such
manner as any original judgment or decree of the said Supreme Court
can or may be executed.


28. And it is herebyfurther ordered, that aU orders heretofore made by
His Majesty, or byany of his royal predecessors, in his or their Privy
Council, and alllaws, customs, and usages now or at any time hereto-
fore established or in force in any of the said colonies, so far as such
orders, laws, or usages are in anywise repugnant to or at variance with
this present order, shall be and the same are hereby revoked, abrogated,
rescinded, and annulled.


29. And it is further ordered, that for the purpose and within the
meaning of the present order, any person lawfulIy administering for the
time being the govemment of :my of the said calonies, shal1 be deemed
and taken to be the Governor thereof.


And the Right Honourable Viscount Goderich, one oC His Majesty's
principal Secretaries of State, is to give the necessary directions herein
accordingly.


(Signed) C. C. GREVILLE.




( 284 )


INFERIOR COVRTS OF CIVIL JUSTICE.


Vnder the authority of the 19th section of the preceding
order, an ordinance was passed by the Governor and Court
of Policy on the 13th day of September, 1832, to repeal
the ordinance passed on the 23d of May, 1832, entitled
" An Ordinance to establish and constitute Inferior Courts
of Civil Justice in British Guiana," and to make other
provisions for such inferior courts. It recites and re-
peals the former ordinance, and then proceeds as fol-
lows :-


Whereas by an order of His Majesty in Council, bear-
ing date 20th June, 1831, His Majesty has been graciously
pleased to authorize the establishing of Inferior Courts
of Civil Justice within tbis colony, having jurisdiction to a
certain extent as therein described.


2. Be it therefore further enacted, that there shall be
one Inferior Court of Civil Justice for the district of De-
merara and Essequibo, and another Inferior Court of
Civil Justice for the distdet of Berbice.


3. And be it further enacted, that the said Inferior
Coul'ts shall be held by and before the Chief Justice 01'
one of the Puisne Judges, at such times as the Judges of
the Supreme Court shall direct and appoint,


4,. And be it further enacted, that the said Inferior
Civil Court shall have jurisdiction in cases to the amount
01' value of twenty pounds sterling, all claims in currency
not exceeding 300 guilders being comprehended in this
limitation.


5, And be it further enacted, that the Registrar 01'
Sworn Clerk and Marshal of the respective Supreme
Coul'ts of Civil Justice shall attend the sitting of the said
l'espective Inferior Civil Courts, and shall be entitled to
receive certain fees for sel'vices l'espectively pel'formed by
them.


6. And be itJurthel' enacted, that when the Judges of
the Supreme Court shall have made, ordained, and esta-
blished all necessary rules, ol'ders, and regulations re·
specting thc manner and form of proceeding to be observed
in the said Inferior Civil Courts, and l'especting the man-
ner and form of carrying the judgments and orders of the




BRITISH GUIANA, 285
said Inferior Civil COUl'ts into exeeution, with aH sueh
other l'ules, ordel's, and regulations as may be neeessary
for giving fuH and perfeet effect to the jurisdietion of the
said courts respectively, and as soon as the said rules,
orders, and regulations shall have been duly promulgated
this court shall thereupon frame the' tariff fixing the
amount of fees to which the respective officers of the said
court shall be entitIed for services performed by them in
their respective offices; and on promulgation thereof by
this court, the said tarifF shall have force of law, and be-
come binding on all parties concerned. .


7. And be it further enacted, that this ordinance shall
come into full operation on the first day of N ovember next
coming. And that no ignorance may be pretended of the
several orders contained in this ordinance, the same shaIl
be printed and published as customary.


PRACTICE OF THE COURTS.


In consequence of the Orders in Council remodelling
the Supreme Comt, and the subsequent establishment of
Inferior Courts, Iocalregulations were made directing the
mode of proceeding in the Supreme Comt and in the In.
ferior Courts of British Guiana. Many of these regula.
tions can be of use onIy to the practitioners of law in the
colony itself; but there are some whieh, as they may affect
eontraets made in this country, deserve to be extracted.
The first duee will give sorne idea of the jurisdietion of
the courts now established in the colony.


Manner of Proceeding to be observed in the Supreme
COllrts of Civil Jllstice in Britislt Guiana, made and
established by the Justices of the said Courts, in pur-
suallce of His Majesty's Order in COllncil, bearing date
~Otk June, 1831.
Sect. 1. A Court of Civil Justice shall be heId in


George-Town four times in each year, for the district of
Demerara and Essequibo, and twice 01' three times, if ne-
cessary, in each year, in New Amstel'dam, for the distriet
of Berbice.
~. A Roll Court shalI be heId in each district before a


puisne judge, on such days as shalI from time to time be
appointed by the Judges of the Supreme Courts, and
shall be continued from day to day until the business




286 BRITISH GUIANA.
brought before it shall be disposed of. Provided how-
ever, that no RoU Court shall be appointed to be held in
the months of August, September, and October.


3. Before the first Roll Court of every month, in which
there shall be one or more Roll Court, shall be return-
able aU and every citation in civil causes over which the
Supreme Court has jurisdiction, except in cases of re-
audition from the Roll to the Supreme Court.


27. It shall and may be lawful for the judge of the
Roll, and he is hereby required to make, if need be, a
special report to the court, touching the examination, and
the conduct 01' absence of any witness or witnesses, 01' other
persons therein, or relating thereto ; a copy ofwhich l'eport,
in the event of any appeal to His Majesty in Council
being granted, and the papers taken out shall be deli-
vered with tbe same; and it shall and may be lawful for
the court, after the case shall have been closed on both
sides and pleaded, to call up and examine any witness
who shall have been examined in the cause.


43. No plantation under execution shall be sold until
one yea1' after levy, and the particular description thereof
and notice of the sale sha1l, at least six months previously
to the day of sale, have been. three times advertised in
the London Gazette and Amsterdam Courant.


44. At the expiration of the year after due notice, as
in s. 43, the court 01' chief justice, during n"on-session,
upon petition of the marshal, shall fix a precise day of
sale of such plantation, and after advertisement of such
precise day for four successive Saturdays in the govern-
ment newspaper of the colony, such plantation shall be
sold at a credit of three, six, nine, and twelve months
from the day of sale, payable in manner hereinafter
stated; and in the event of the property to be ·sold con-
sisting of severallots of land, with or without slaves 01'
appurtenances, 01' of severallots of slaves, with 01' without
buildings, and upon which lots respectively there shall be
separate 01' distinct mortgages, liens, or claims, the holders
of such distinct mortgages, liens, or claims, shall be at
liberty to petition the cou!'t or chief justice during non-
session for an order to sell, as it sha11 seem most aUvan-
tageous to all parties under the circumstances of each
particular case, and to enable the court to ascertain the
rights of the respective parties on the decision of pre-
ference and concurrence.


55. If the purchaser of a plantation or other immove-




BRITISH GUIANA. ~87
able property sola a1; execution sale, be a holder of a first
01' second mortgage on the same, he shall not be bound to
furnish security, 01' pay, save and except to the extent of
8uch claims as sha11 appear to the court to be preferent
to such first 01' second mortgage, and of the amount for
which the purchase-money shall exceed the amount of the
sum due.on su eh first 01' second mortgage, provided such
first 01' second mortgage, in virtue of which exemption
from security 01' any part thereof sha11 be claimed, sha11
be deposited with the registrar.
7~. Every barrister, advocate, attorney, and solicitor,


upon his admission to practise, shall have administered to
him and 8ha11 take the fo11owing oath :-


" y ou sha11 swear that well al!d truly you shall serve
" the King's subjects, according to the best of yOUl' learn-
"ing and knowledge in the law, and you shall truly
" counsel and advise them that shall retain you according
" to the best of your skill, and you shall not defer, pro-
"tract, nor delay their cause willingly, for lucre 01' hope
H ofreward. So help you God."


And no practitioner at the bar shall be allowed to
appeal' for a plaintiff, without filing at the time of his
appearance, a power, ad lites, unless by leave of the
court, nor for any defendant without filing, at the time of
his appearance, a copy of the citation served upon the
defendant, 01' sorne other authentic voucher, as evidence of
his being employed for and on the behalf of such de-
fendant.


73. Whenever the secretary shall be called upon to
pass .01' execute a power ad lites, in favour of any prac-
titioner, care sha11 be taken to insert therein authority to
receive monies and to grant receipts, and unless such
authoritybe inserted in the powers ad lites, the same shall
be considered to have been intentiona11y withheld.


76. Edictal citations at the instance of an executOl',
administrator, eurator, guardian, 01' trustee, shall be
confined to two, that is to' say, the first edictal citation
.shall be issued in the' colony within one month after date
of the order obtaineu from the chief justice, and the
second, 01' last, so soon as the marshal shall have made his
return of the edictal citation having been published three
times in Europe, as in section 43, 01' in one month after
the first shall have. been called at the roll, ir the publica-
tion in ~ul'ope be not required.




288 BRITISH GUIANA.


Mannm' rf proceeding in tIte bife1'ior Courts of Britisk
Guiana, as establislted by tite Judges 01 tlte Supreme
Courts in pU1'suance qf Bis Majesty's Order in Councit
of~Otl¿ June, 1831.


Sectíon 19. Thel'e shaIl be no appeal from any sentence
of these courts, and eight clear days after sentence shaIl
have been pronounced, the party in whose favor the
sentence is shaIl be at liberty to proceed in execution
thereon.


28. Every one shaIl be at liberty to appear personally
in the Inferior Courts, to conduet his own cause, 01' to
employ by power ad -lites a duly ,admitted barriste!',
advocate, 01' attorney, and no other person to appear for
him; it being however understood that whenever such
barrister, advocate, 01' attorney, is employed, he shaIl be
remunerated by his own cIient, and no fee 01' remuneration
paid to any barl'Íster, advocate, 01' attorney, for appearing
in the Inferior Courts1 shall form any part 01' parcel of the
bill of costs to be taxed against the party condemned.


Qualification of Assessors.
The order in Council of the ~th June, 1831, having


directed that in certain cases therein mentioned, assessors
should sit with the Judges of the Supreme Court, another
order in Council of the date of the 15th August, 1832, was
issued declaring the qualifications of such assessors. The
second order was published in the colony by the pro-
clamation of the Governor, dated on the 25th October
in the same year, and was in the following terms:-


Whereas on the 20th day of June, 1831, an order was
made by His Majesty with the advice of His Privy Council,
for improving tbe administration of justice in His Majesty's
Colonies of British Guiana, Trinidad, and Sto Lucia,
whereby it was, amongst otber things, Ol'dered, that the
as ses sor s of the courts therein mentioned in Demerara
and Berbice sbould be chosen and appointed in such and
the same manner as the members of the Court of Civil amI
CriminalJustice ofDemeral'a have heretofore been chosen
and appointed, and that the assessors of the said court fol'
the trial of criminal prosecutions in Trinidad ihould be
chosen and appointed from and out of the members of the




BRITISH GUIANA.


Cabildo of the town' of Port of Spain, in the said island ;
ano that the assessors of thc said Royal Court of St.
Lucia should be chosen and appointed in such and the .
same manner as the members of that court, other than the
First Prcsident have heretofore be en chosen and ap-
pointed. And whereas it is expedient to admit to the
discharge of the duties of assessors in the said courts
respectively, aH free adult male inhabitants of the said
colonies possessing such qualification as hereinafter is
mentioned: it is therefore hereby ordered by His Majesty.
by and with the advice of his Privy Council, that so much
of the said order as is herein before recited shall be, and
the same is hereby revoked and repealed. And it is
hereby further ordered, that every free man except as
hereinafter exempted, between the ages of 21 years and
60 years, residing in any of the said colonies, who shaIl
have 01' be beneficiaIly entitled to, fOf his own use and
benefit, either in his own name 01' in trust for him, withio
the same colony, ten pounds by the year aboye reprises, in
any immoveable property, 01' in rents, or other anoual
profits 01' proceeds issuingout of such immoveable property
either io perpetuity or for the life of himself or sorne other
person; or who shaIl have within the same colooy for his
own use and benefit, either in his own oame or io trust
for him as aforesaid, 201. by the year aboye reprises in
immoveable property heid by lease or leases for the ah-
solute term of 21 years, or sorne longer term, or for any
term of years determinable on any life or lives; or who
being a householder should be rated or assessed to any
direct tax or impost, 01' to aoy rate for the relief of the
pOOl', 01' othe1' local object, on a value ofnot less than 20/.
per annum; or who shaIl occupy a house of the annua!
value of ~Ol. shaIl be qualified and liable to serve as an
assessor, within the meaning and for the purposes of the
said recited order, in the colooy io which every man so
qualified respectively shaIl reside, and for the purpose,
and within the meaning of that urder, an slaves whether
prredial 01' personal shaIl be considered as immoveable
property. Provided always, and it is further ordered, that
an members of the legislative bodies of the said respective
coIonies, aH jurors of the Supreme Cou1'ts of Justice
the1'ein, an clergymen in hoIy oroers of the established
ChUl'ch of England and IreIand, all ministers of the Kirk
of Scotland, and of thc Luthcran and reformed churches,


u




290 DRITISH GUlAN A.
aH priests ofthe Roman CathoIic faith, aH persons who shall
teach or preach in any congregation of Protestant dis-
senters, and who shall follow no secular occupation except
that of schoolmaster, aIl doctors oflaw, advocates, counseI,
and barristers actually practising, all attorneys at Iaw,
solicitors, and proctors actuaIly praetising, aH officers of
the said courts actuaHy exercising the duties of their
respective offices; all jailors and persons actualIy em-
ployed by and under them in the custody of prisoners ;
aU physicians, surgeons, and apothecaries actuaHy prac-
tising by virtue of any diploma, lieense, or certificate
granted by any competent authority; aIl officers in Bis
Majesty's navy or army on fuIl pay, aH pilots duly lieensed
by any competent authority; aH offieers of customs, and
all officers actually employed as deputies or assistants to
the marshaIs, or other executive offieers of the said courts,
shaIl be and are hereby absoIutely freed and exemptecl
from serving as such assessors as aforesaid. Provided
also, and it is further ordered, that no man who hath been,
or shaIl be convicted of any crime that is infamous, unIess
he shaIl have obtained a free pardon, shaIl serve as such·
aSSessor. And whereas it is necessary that provision
should be made for ascertaining the names, places of
abode, and deseriptions, of aIl persons within the said
respective colonies qualified and liable, to serve as such
assessors, and for making and revising from time to time,
proper lists of such persons, and for the due summoning
of them in some settled rotation to serve as sueh assessors,
and for the impartial seIection of a sufficient number of
persons from those so summoned to serve on every
eriminal prosecution,


It is further ordered, that the chief justices and other
j udges of the Supreme Court of the said colonies re-
spectively, shaIl be, and they are hereby authorized, to
make, ordain and establish, all neeessary rules, orders, and
regulations, respecting the manner in which the names,
places of abode, and descriptions of persons within the
said respective colonies, qualified and liable to serve as
such assessors as aforesaid, shaIl be ascertained, and re-
specting the making and preserving in the different
districts and quarters of the said respective colonies, lists
of an su eh persons, and respecting the public and other
notices to be given preparatively to the eompiling of any
such lists, and the publication of any such lists when so




BRITISH GUIANA. ~91
,


compiled; and respecting the manner in which aIl persons
whom it may concern shaIl be called upon 01' permitted to


# oppose 01' object to the insertion 01' omission of any name
in any such list; and respecting the manner in which
every such opposition 01' objection shaIl be heard, tried,
and determined, and respecting the manner of reforming,
correcting, 01' allowing any such list; and respecting the
manner and form in which aIl such lists, when corrected
and reformed, sbaIl be recorded; and also respecting the
manner, order, and form in which all persons, whose names
sha11 be comprised in any such record, shall be summoned
to attend at any sessions of any such court, there to serve
as assessors, and respecting the times at which, and the
manner in which such summons shaIl be served; and aIso
respecting the mode in which a competent number of
assessors shaIl be chosen, eithel' by ballot 01' otherwise,
from among the number so summoned to serve as assessors
in the saiel courts; and aIso respecting the proper method
of proceeding to preserve a due rotation amongst such
assessors; and also respecting the several officers by
whom, and the times and places at which the before-
mentioned duties respectively shall be done and performed ;
and a11 such rules, orders, and regulations from time to
time to alter, revoke, and renew, as occasion may require.
Provided always, that no such rules, orders, and regu-
lations, as aforesaíd be repugnant to thís present order,
and that the same be forthwith transmitted under the seals
of such respective courts to the respective governors, to
confirm 01' disaIlow the whole or any part of such rules,
orders, and regulations, as to such respective governors
may in theit discretion seem fit; and the same when so
confirmed by such respective governors snall take effect
and be in fuIl force within the said respective colonies
until liis Majesty's pleasure shaIl be known; ahd the Same
shall be transmitted to His Majesty for his approbation 01'
disallowance, in the manner directed and required by the
said recited order of the QOth June 1831, with respect to
the rules, ol'ders, and regulations of the said Supreme
Cou!'t therein mentioned.


And it is further ordered, that if any public officer 01'
other person within the said colonies respectively, who,


, by any such rules, orders, and regulations as aforesaid
shaIl be l'equil'ed 01' directcd to pel'form any duty, 01' to


uZ




292 B1UTISIl GUIANA.
do any act in 01' about 01' connected with the several mat-
ters aforesaid 01' any of them, sha11 refuse 01' neglect to
perform any such duty, or to do any such act, every such
officer 01' other person shall, for every such offence, for-
feit a sum not exceeding .:B1O nor less than 408., as to thc
judges of the Supreme Court of such colony wherein the
same shall occur sha11 seem reasonable.


And it is further ordered, that every person¡who, under
the provision of this present order, 01' of ally such rules,
orders, and regulations as aforesaid, sha11 be duly sum-
moned to serve as an assessor for the trial of any criminal
prosecution in any ofthe said colonies, who shall not appear
and serve as such assessor after being openly called three
times, and on proof being made on oath of his having
been duly summoned, sha11 forfeit and pay fol' evel'y such
his default. such fine, not exceeding l' 10 nor less than
J;l, as the coul't shalI deem reasonable to impose, unless
sorne just and sufficient cause for such defaulter's absence
shalI be made to appear, by oath 01' affidavit, to the sa-
tisfaction of the court. And it is further ordered, that
every fine which shall be imposed by virtue of this pre-
sent order shall be imposed by. a summary proceeding
before the said courts respectively, on the motion of the
public pl'osecutor of and for any such eolony, and sha11 ,
when so imposed, be levied and reeovered in sueh and the
same manner and by a11 such ways and means as any
other fine or penalty imposed by a judgment of any such
eourt; and shall, when so recovered, he paid over to the
tl'easurer 01' other l'eceiver of His Majesty's revenue
within such colony, in aid of the expenses of the civil go~
vernment thereof and the administration of justice therein.


And it is further ordered, that in aH criminal proseeu-
tions before the said courts respectively, it shall be a good
cause of chalIenge of any person summoned to serve as an
assessor, that he is not qualified according to the provi-
sions of this present order, 01' that he is an illiterate per-
son and unable to read or write, and that any other cause
which according to the law of England would be a good
cause of cha11enge of any man summoned and returned to
serve as a common juror on the trial of any issue joined
between the King and the prisonel' on any indictment for
felony or misdemeanol', shall also be good cause of chal-
lengc to any assessor sUlllluoned to serve Oil the tria' of




BRITISH aUIANA. 293
any criminal prosecution in any of the said colonies, in so
far as that part of the law of England is capable of being
applied in the said eolonies j and if any sueh cause of
challenge shall be alleged, either by the publie prosecutor
01' by any such person 01' persons against whom any such
prosecution may be brought, the judges of the court shall
forthwith proceed to enquire of, and consider the grounds
of any sueh challenge, and shall either allow 01' overrule
the same, as may be just j and upon su eh ehallenge being
so allowed, another person shall be chosen to serve as
assessor in the place and stead of the person so challenged,
and so on, until a sufficient number of assessors shall
appear against whom no cause, 01' no just cause, of chal-
lenge shall be alleged.


And it is further ordered, that after deducting six from
the whole number of the persons summoned and actualIy
appearing to act as assessors on any criminal proseeution,
the publie prosecutor and the person 01' persons against
whom the prosecution may be brought, shaIl ea eh have as
many peremptory ehallenges as shall be equal to one half
of the remaining number, 01' should the remaining number
not be an even number, then the person 01' persons against
whom the proseeution may be brought shall have one
peremptorychallenge more than the public prosecutor.


And it is further ordered, that before proceeding to the
trial of any sueh criminal prosecution, each assessor shall,
in oren court, audibly pronounce and take the oath ap-
pointed by the law of England to be taken by petit
jurors imp8.nnelled for the trial of any issue joined be-
tween the King amI any person 01' persons arraigned upon
any indietment in His Majesty's Comt of King's Beneh
at \Vestminster.


And it is further ordered, that the assessors so to be
summoned and ehosen as aforesaid, shall have, exereise,
and enjoyan sueh and the same rights, powers, and pri-
vileges, and shall perform an such and the same duties
as according to the provisions of the said recited Order
in Couneil might be exercised, enjoyed, and performed
by the assessors therein mentioned.


And it is further ordered, that this present order shall
take cffect and come into operation in the said respective
eolonies so soon as thc same shall have been promulgated


I within any sueh eolony by the Governol' thereof, and not




BRITISH GUIANA.


before; and that for the purposes and within the meaning
of this present order, the officer administering the govern-
ment of any such colony shall be esteemed and taken to
be the Governor thereof.


And the Right Honourable Lord Viscount Goderich,
one of His Majesty's principal Secretaries of State, is to
give the necessary directions herein aceol'dingly.


C. Greville.


ASSESSORS.


An Ordinance to provide a sujficient number of Assessors
io be associated with the Judges of the Supreme Courts
of Criminal Justice qf British Guiana, as enacted by
the Governor and Court of Policy on tIte 5th December,
1831.


Whereas, by an order made and passed by His Ma-
jesty in Council, bearing date the :20th June, 1831, it was


. amongst other matters provided that three assessors
should be associated with three judges upon the trial of
any person or persons in either of the Supreme Courts of
the colony for any crime or offenee, sueh assessol'S being
entitled to deliberate and vote with sueh judges upon the
final judgment to be pronounced in every such criminal
,case.


And whereas it was further provided that assessors
shall be liable to be challenged on such and like grounds
as may be alleged as lawful grounds of challenge against
any petit juror impannelled fol' the trial of any indict-
ment in England :


And whereas the number of pel'sons to be eleeted,
chosen, and appointed to serve as assessOl'S must be suffi-
cient to provide fol' cases of challenges heIa to be valíd :


Cl. 1. Be it therefore enacted, that there shall be for
the Supreme Criminal Conrt of Demeral'a and Essequibo
a number of twelve assessors, and for the Supl'eme
Criminal Court of Berbice a like number of twelve as ses-
sors.


5? And be it further enacted, that the right to elect
assessors is and shall be vested in the College of Kiezers
of British Guiana, and in the exercise of this right the
college shall be bound to makc a double nomination of




BRITISH GUlANA. 295
persons fol' the offiee of assessor, to be transmitted through
the hands of His Excellency the Governor to the judges
of the Supreme Comt, and that it shall be lawful for the
said judges to seleet one of the persons nominated to
serve as an assessor, and the like form shall be observed
on eaeh and every oceasion of a vacaney oceurring in the
complement of the said assessors for ·the said eourts re-
spectively.


3. And be it further enacted, that notification shall be
sent by the secretary of the Comt of Justice to each per-
son who shall be seleeted in manner aforesaid, and in case
of any person who shall have been selected for an asses-
sor refusing to accept the office, or neglecting to signifY
his acceptance by written communication delivered to the
secretaryaforesaid, within fomteen days from the date of
notification, sueh person shall be liable to a fine of 1500
guilders in behalf of the colony, and the judges of the
Supreme Comt shall certify to the Governor and Court
of Policy that such a fine has been incurred, whereupon,
unless good and valid reason for sueh non-acceptance 01'
negleet be shewn to the satisfaetion of the Governor and
Court of Policy, the said court shall order and direet the
Colonial Reeeiver to proceed for the fine aecording to
law.


4. And be it further enacted, that each and every per-
son who shall be selected in manner aforesaid to serve as
an assessor, shall, within the period of one week from
the expiration of the term of fourteen days allowed to
signify his aceeptance of office, and whose aeeeptance
shall have be en notified to the secretary, 01' within such
period of fourteen days if he shall have aecepted the
offiee and desires to be sworn, appear before His Exce]-
lency the Governor, the Chief Justiee 01' one of the Puisne
Judges of the Supreme Comt, and take and subscribe
the following oath :-


" y ou shall faithfully and truly discharge the duties of
" an as ses sor in the Supreme Court of Criminal Justice
"for Demerara and Essequibo (01' fol' Berbice, as the
" case may be,) and shall deliberate and vote on tbe final
" judgment to be passed on all criminal trials on which
" you may sit, without partiality, favoul', 01' affection. So
" he]p you God."


After which his appointment shall be puhlicly notified




296 BRITISH GUIANA.
in the Royal Gazette of the colony; His Excellency the
Govemor 01' one of the judges being, nevertheless, em-
powel'ed to extend the time for taking such oath, if suffi-
cient l'easons be a11eged to either of them to gl'ant such
extension of time.


5. And be it further enacted, that the Puisne Judges of
the Supreme Court sha11 have the sanie power to admi-
nister oaths in all cases, ch-il and criminal, as the Prc-
siding Judge of the Court of Justice, styled under the
said Order in Council the Chief Justice, now has, and
heretofore hado


6. And be it further enacted, that it sha11 be the duty
of each and every assessor to attend the sittings at each
session of the Supreme Criminal Court; those assessors
who are appointed fol' the Supl'eme Court of Demeral'a
and Essequibo to attend the sittings to be held in George-
Town, and those assessol's who are appointed fol' the
Supreme Courtat Berbice to attend the sittings in Ncw
Amsterdam, l'espectively; and the proclamations of His
Excellency the Governor for the time being in the Royal
Gazette of British Guiana, appointing the time of holding
such sessions respectively, sha11 be due and sufficient
notice to aH such assessors.


7. And be it further enacted, that previous to the
bringing up of any person for trial, the names of all the
assessors who may be in office for the time being, in the
aforesaid jurisdictions l'espectively, written on similar
pieces of papel', shall be placed in a box by the secretary
of the Supreme Courts respectively, to be drawn there-
from in succession by the second puisne judge, and after
three assessors are found to whom there is no leg,tl
ground of challenge 01' objection, the trial shall proceed.


And that no ignorance may be pretended of the several
orders contained in this 'ol'dinance. these presents shall
be published, affixed, and sent round for general in-
formation.


There were two other clauses in this ol'dinance, but
they have been repealed by the fo11owing ordinance:-




BRITISH GUIANA. ~97


An Ordinance passed by tIte Govemor and Court 01 Po-
lic!I on tite ~3d da.y of August, 18S~, lo amend an
Ordinance eniitled " An Ordinance io pro vide a su.Jfi-
cient number qf Assessors lo be associated witlt tite
Judges of the Supreme Court of Criminal Justice of
Britisk Guiana."


Whereas we have deemed it expedient to amend an
ordinance enacted on the ~lst December, 1831, and pub-
lished on the 22d following, intituled "An Ordinance to
provide a sufficient number of Assessors to be associated
with the Judges of the Supreme Court of Criminal Jus-
tice of British Guiana:"


Be it therefore enacted that the 8th and 9th clauses of
the said ordinance are hereby amended to the effect-
that instead of the said clauses, the following shall be and
are hcreby substituted in lieu thereof respectively :-


Cl. 8. And be it further enacted, that if any person,
who having been appointed an assessor and whose name
having be en drawn as already prescribed in clause 7,
shall not be present to answer thereto, or shall decline to
sit as an assessor on any such trial, he shall be liable to a
fine of 100 guilders, unless good and sufficient cause
be shown to the satisfaction of the judges that sucb asses-
sor is absent from unavoidable cause, 01' has good reason
for declining to sit on such trial; and tbe judges shaIl,
when they see fit, certify to His ExceIlency the Governor,
that sucb fine 01' fines bas 01' have been incurred; and
His Excellency may thereupon, if he see fit, either grant
authority to the colonial receiver to proceed by summary
execution for the recovery of the said fine 01' fines, or
submit tbe eonsideration of tbis proceeding to tbe Ho~
nourable Court of Policy.


9. And be it further enacted, that each assessol' shaIl
be liable to serve two years, and until the session is closed
in which sucb two years may expire, should the same take
place during any such session; and after having served
fol' snch period of two yeal's, shaIl not be compellable to
accept the office of assessol', until after the expiration of
two years from tlre end of such sel'vice, provided never-
theless, that any person who has been elected and ae-
cepted the office of assessol' may, at any time during such




!298 BRITISH GUIANA.
period of two years, be relieved from further service on
payment of a fine of 1500f. or mayapply by petition to the
Governor and Court of Policy to be relieved from such
further service without the payment of such fine, and it
shall be competent to the Governor and Court of Policy,
on good and valid reasons being adduced, to relieve such
person from such further service. But any person elected
an assessor, .and who may have paid the fine, shall be
liable to be re-elected and to serve at the expiration of two
years from the period of his former election.


And that no ignorance may be pretended of the several
orders contained in this ordinance, these presents shall be
published, affixed, and sent round for general informa-
tion.


LAWS.
Sínce the date of the commission to General D'Ul'ban


the following ordinances have been passed, dcclaring what
shall be the laws of the united colony.


An ordinance dated on the 2d Decem\;ler, 1~31, and published on the
day following, "to continue in force the statutes, acts, and ordinances
heretofore passed, enaeted, and ordained by the Governor or Lieutenant-
Governor and Court of Poliey of the colonies of Essequibo and Deme-
rara, or by the Governor or Lieutenant-Governor and Court ofPolicy of
the united colony of Demerara and Essequibo, and by the Governor er
Lieutenant-Governor and Court of Poliey of Berbiee, or by the Governor
or Lieutenant-Governor and council of government Qf Berbice. re-
spectively, as enacted by the Governor and Court of Policy of British
Guiana." This ordinance, after reciting that "Whereas His Majesty
had been graciously pleased by his royal commission and letters-patent,
dated 4th day of March, 1831, (see ante, 262,) to give and grant to the
Governor ofthe colony of British Guiana full power and authority, with
the advice and consent of the Court of Policy of the said colony, to
make, enact, ordain, and establish laws for the order, peace, and good
government of the said colony," declares that the laws theretofore passed
in any of the colonies now forming British Guiana, " shall have the full
force and operation of law in the said respective districts of the colony
of British Guiana." The Governor and the Court of Policy reserved to
themselves the power of altering, revoking,&c. the said acts, &c. as they
may judge proper.


On the 30th November, 1831, was passed another ordinance "lo
continue in force the laws of evidence and the rules for criminal prac-
tice in Demerara and Essequibo, and to extend the same lo the distriet
.of Berbice, as enacted by the Governor and Court of Policy."


The courts of Ihe colony are the Supreme Court, established by the
Order in Council, and the Inferior Courts creat.ed under the authority
thereof.




( ~99 )


ST. LUCIA.


-


THIS island, one of the Caribbean ehain, is situated be-
tween the latitudes of thirteen and fourteen degrees north,
and the longitudes of fifty-nine and a half and sixty and a
halfwest. It has Martinico on the north at the distance
of about twenty miles, and St. Vincent's on the 80uth at a
small dístance.-4 B. Edw. ~61.


The soil of Sto Lucia is fertile. The finest part of the
eolony is the south-west quarter, which is well cuItivated
and thickIy inhabited. The interior is nearly deserto
The productions of the isIand are sugar, coffee, cocoa,
cotton, and indigo. The coffee is said to be supe-
rior to that of Martinico. Within the last thirty years
the quantity of produce has perhaps been more than
doubled. In 1788 the popuIation was ~O,918 persons, of
whom 2159 were whites. The population in 1814 was
only 17,485, of whom only 1210 were whites. Since the
restoration of peace and the cession of the colony to
Great Britain, it is, however, believed to be once more
increasing.


Sto Lucia is divided into eleven parishes 01" districts,
which beal' the name of Castries, Ance la Raye, Souffriere,
Choiseul, Laborie, Vieux Fort, Micoud, Prasling, D'En-
nery, Dauphin, and Gros Islet.-4 B. Edw. 274.


The island of Sto Lucia was for the purposes of the
administration of justice united to the colonies of British
Guiana and Berbice, by an ordet in council of the ~3d
April, 1831, but tl~at order was suspended by another of
the date of the i20th June in the same year. For the
mode in which the courts are now constituted see the last
of these orders, ante, 274.


HISTORY AND CONSTITUTION.


The name of Sto Lucia is del'ived from the saint's day
on which it was discovered. It was not till 1639 that any
attempt was made to form a settlement 011 this island. It




300 SR. LUCIA.
was then taken possession of by the English. Two years
afterwards, howevel', the Governor and most of the set-
tlers were murdered by the Charaibes, amI the survivors
were driven out.-4. B. Edw. 263.


In 1650 it was seized upon by the French, but reco-
vered by the English in 1664, who however again evacuat-
ed it. From 1718 to 1730 disputes existed between the
English and French settlers assuming to take possession
un del' the authority of grants from their respective mo-
narchs, when in the latter year it was declared a neutral
territol'Y' It was formally ceded to the French in 1763 at
the time that Grenada, Tobago, St. Vincent's, and Do-
minica were given up to the British Crown. It is at prescnt
a crown colony governed by Orders in Council, and the
inhabitants have reason to regret the cession to the
French in 1763, which prevented their enjoying the ad-
vantages of a representative assembly in the same man-
ner as the colonies just mentioned. The is)and was cap-
tured by the English in 1794., held by them tilI the peacc
of Amiens, then restored to the l<'rench, and again taken
on the 19th June, 1803, and finally ceded to England at
the peace of 1815. (1)


LAWS. (2)
The laws in force here at the time preceding the last


cession to France still prevail, except so far as they have
been altered by Ol'ders in Councíl, to which St. I,ucia as
a colony acquired by conquest is still subject. With this
exception, therefore, it is governed by the ancient law of
France, as it existed before the promulgation of the code
of N apoleon.


The old laws proceed from two vel'y different sources
01' authorities; some wel'e enacted by the Kings of
France, 01' government at home, and others by the Go-
vernor and Intendant jointly-the local authol'ities.-
House of Commons' Papers l'elative to the Slave Popula~
tion, (1826,) p. 16.


(1) 4th vol. RaynaI's East and
West llldies; 4 Edwards aud How-
ard's Laws 01' Colouies.


(2) See ant~1 p. ;) to 16, 011 the


general topie, 1001V far the colouies are
subject to the law of the motIJer coun-
try.




STo LUCIA. 301
The two pl'incipallaws emanating from the government


at home are the Code Noir of 1685, approved and signed
by Colbel't, and the edict of 1786. The last, though
seldom quoted, will be found to inelude so me very whole-
80me provisions, and many similar to those contained in
the Trinidad Order.-Ib. 17.


LA W OFFlCERS.


The law officers of the Crown are in France bound to
protect the interests, and are the professional advisers of
an persons who frorn their youth 01' mental incapacity, 01'
frorn being under the power amI authority of another
(such as rnarried women) cannot be called free agents.


The Procureur General and Procureur du Roí are not
allowed to take private practice; their substitutes are, as
they mel'ely replace them occasionally. Pigeau's defini-
tion of the Ministere Public, (Traite de la Procedure
Civile, tomo i. p. 235,) is particularly elear and in point.
" By the Ministere Publir: is to be understood the Pro-
r:ureurs du Roi and their deputies in the tribunals. The
law has established thern to watch over its execution, and
to act as guardians to all that which relates to public
order, the condition of rnen, the rights of those who are
not able to defend themselves, and finalJy the regularity
of all jurisdictions. It is therefore necessary that an sub-
jects of this nature should be comrnunicated to them."-
lb. 18.


Mr. Jeremíe, from whose papers these statements are
taken, goes on to add that in consequence of the terms of
the law, he considered the Procureur du Roi to be ex
officio the protector of slaves in the colonies where the
French law exÍsted.


PARTICULAR LAWS.


Marriage Property.
By the custorn of París, and now by the general law of


France, persons mal'rying place part of their property in
comrnon, (en cornrnunanté); of this the husband has the
adrninistration during coverture; another part they re-
tain for their prívate 01' separate use; this is the propre




302 STo LUCIA.
which should not be confounded with the propre au suc-
cession; in the latter case, propre signifies a real estate
derived by descent, as distinguished from a real estate
acquired by purchase.-House of Commons' Papers on
the SIave Population, (1826,) p. 3.


Ranking of Creditors.
In attachments of personal property the first creditor


attaching is preferred. Creditors acquire a preference by
the arrest or saisie in execution, and not by the date of.
the debt, or even of the jpdgment. This i8 the case in
the city of London with respect to pl'Operty in the hands
of a garnishee.-Ib. p. 4.


Mortgages.
N o proprietor, whose plantation is under mortgage, nor


his attorney nor agent, shaU seU or otherwise transfer any
of his plantation slaves, and thus separate them from his
plantation, on pain of being punished as a Stellionaire 01'
person guilty of fraudulently transferring real property,
and such sales, transfers, &c. shall be nun and void.


Stellionat. This is a crime I have not found mentioned
in Hale, Hawkins, or any other authors on the English
Crowh Laws. The punishment awarded by the law of
France is eithér a fine or imprisonment, but the chief
benefit derived by the creditor is that a debtor guilty of
" steltionat " is liable to personal arrest, that no exemption
will avail him, nor would he be admitted to make cession.
Stellionatús crimem etiam infamum irrogat, d. 13. So
that he becomes incapable of holding any public office.-·
lb. 4.


A mortgage creditor wishing to recover the amount of
his debts (to foreclose) obtains an order to take posses-
sion of the estate; this taking possession is called "saisie


. réelle." He is then bound to let it for a given term of
years; the tenant is "le fel'mie~' judiciaire;" during tbis
time the creditor goes through various forms required
before he can obtain possession to seU it. The sale is
called "l'adjudication par déeret,." and from the day the
creditor took possession to the day of sale the estate is
saiel to be " en saisie l'éelle."
. "Hypotlleques et privileges."-Privilege is a l'ight of




STo LUCIA. 303
preference proceeding from the nature of the debts, as
debts for funeral expenses are said to be privileged.


Hypotlteque is a kind of preference acquired by con-
tl'act 01' judgment, and is tota11y independent of the nature
ofthe debt.


Hypotheques rank according to their dates; privileges,
in the order assigned them by law, without reference to
the period at which the debt was contracted.~Ib. 5.


Landed property is here of little value, scarcely a
twelfth-part of the best cultivated estates is turned to use.
Plantations, even with extensive buildings upon them,
produce, when sold, little, often nothing mol'e than the
estimated price of the slaves, and yet slaves are not liable
to mortgage. It follows that mortgage deeds are, in
effect, of no value 01' benefit to the holder; so that the
West India merchant who had, when St. Lucia became a
British colony, poured large capitals into it upon the faith
of contracts which he thought binding, now begins to dis-
cover, what the plantel' who had so readily borrowed was
always well aware of, that he is not only deprived of the
privilege 01' pl'eference to which his mortgage seemed to
entitle him, but that he has no kind of security whatever.
The slave cannot be withdrawn by the creditor from the
land, and sold in satisfaction of a judgment. The per80n
of the debtor is protected by law, and the remedy by
saisie réelle it would be useless to adopt, since it is per-
fectly evident that as long as tbe owner can seU and re-
move bis slaves, be will,-probably before the commence-
ment, but certainly long before tbe conclusion of tbe
suit,-tbus leaving for bis creditor tbe land and buildings,
not worth altogetbcr tbe expense incurrcd to obtain them.


, -lb. 22.


COLLECTION OF LAWS.


The laws are to be found in the collection entitled
" Tbe Code of Martinique," lately printed in five volumes.
All the papers, registers, and archives of the registry of
Sto Lucia having been burnt at the fil'e which destroyed
the town of Castl'ies in 1790, there are at present existing
in the registel's of this dep6t only some Iaws, ordinances,
and rules, which have been made and published by the
different English Govel'llors since thc re-establishment of




304 STo LUCIA.
the tribunaIs by Genel'al Prevost in 1800, witb the exeep·
tíon of sorne aets of the Freneh government whíle it
oeeupied the island after its restoration to the Freneh by
virtue of the tl'eaty of Amiens, up to the eonquest made
by the British arms in 1803. But these aets have not
be en mueh followed sinee the new conquest, as the colony
was then ceded subject to the laws whieh ruIed it before
its last restoration to the French government.-Howard's
Laws of the Colonies, 579, 580.


The Supreme Court in this ¡sland is now constituted
according to the provisions contained in the Order in
Council of~Oth June, 1831. (See ante, 274-.)




( 305


TRINIDAD.


-


AT the entrance of the Gulph of Paria, which it land-
locks, and stretching from the mouth of the Orinoco to
the mountains of Cumana, between the tenth and eleventh
degrees of north latitude, and the sixty-first and sixty-
third degrees of west longitude, is situated the islaml of
Trinidad. Its extreme breadth from east to west is
between sixty and seventy miles, and fifty miles from
110rth to south. From its peculiar shape, however, its
general breadth is much greater from no1'th to south than
trom east to west. In form it is compa1'ed by the Spa-
niards to an ox hide; but by a recent map constructed
from correct observations made by M. de Humboldt and
M. Churucca, it appears rather to resemble a square with
a semicircular piece cut out of its western side, so as to
make on that side an irregular crescent, one hom ofwhich
is turned towards the Orinoco and the other to the
peninsular extremity of the province of Cumana. Circum-
scribed by the main land and the island, is the Glllph of
Paria, which affords to ves8els of every dimension a secure
shelter and an excelIent anchorage. The channel be-
tween the Orinoco alld Trinidad is called the Serpent's
Mouth; that between Trinidad and Cape Paria i8 inter-
spersed with islands, and 'bears the name of the Dragon's
Mouth, which was given to it by Columbus. The name
of Trinidad was also given to the island by that illustrious
navigator, from the circumstance of three of the highest
peaks of the mountains having 6rst appeared to him on
his approach to the land.-4 B. Edw. 288, 289.


Trinidad is abundantly provided with excellent har-
bours, among the principal of which are Chagaramus,
Puerto d'Espana, and Naparima, all on the Gulph of
Paria, and the soil is deep and fertile. .


The principal exportable produce of Trinidad consists
of sugar, rum, coffee, indigo, catton, and cocoa. The cocoa


x




306 TRINIDAD.
of this island was always celebrated for its excellent
quality, being considered as superior even to that of Ca-
raccas.-4 U. Ed w. ~95, ~96.


HISTORY AND CONSTITUTION.


The island of Trinidad was discovered by Columbus
on the 31st of July, 1498. The discovery was made in his
third voyage, and the island was named by him after the
Holy Trinity. It appears from the account of Herrera that
he was drawn by the force of the currents caused by the
descending waters of the Orinoco into the Gulf of Paria,
which it is said he called Golfo Triste, from his having at
first despaired of finding an outlet, and consequently be-
lieved tbat his labour was entirely lost. Having been in
great danger in a violent storm he made a vow to give tbe
name of tbe Holy Trinity to tbe first land be sbould find,
soon after wbich a sailor in the main-top saw three points
of land, wbereby the name fitted every way to bis vOW. -
Columbus at lengtb found egress tbrougb tbe channels on
tbe nortb, to wbich, on account of tbe stormy navigation,
be gave tbe name of the Dragon's Mouth. The Spa-
niards did not attempt to make any settlement on the
island till ninety years subsequent to its discovery.


It was almost immediately afterwards captured by Sir
W. Raleigh in ]595, on his way to Guiana in search of
El Dorado, hut it speedily feH again into tbe power of
the Spaniards. Previously to the yeal' 1783, so small
had been the efforts made to render tbis colon y as
valuable as its natural resources would bave made it, that
a single vessel belonging to a Dutch house in Sto Eustatia,
and making annuaIly two or tbree voyages, was sufficient
to carry on th~ whole commerce of the island. M. Roume
St. Laurent, a gentleman of Grenada, and Don Joseph
Chacon, tbe Governor appointed from Spain, were the
first persons to whom the colon y was indebted for its
prosperity. In 1797 Trinidad was captured by the troops
llnder Sir Ralph Abercl'omby. It was ceded by the Spa-
niards at the peace of Amiens, and has since continued in
the possession of the British.-l B. Edw. 71, and 4 lb.
9Z97,301.




TRINIDAD. 307


LAWS. (1)
The laws in force here are the laws of Spain as esta-


blished at the time of the eonquest by the English, with
such alterations only as ha ve been made in them by
Orders in Council, to which this island as a colony by
eouquest is now subject. (2) It would appear tbat either
there had deen a general intention to alter the Spanish
la ws' of tbis eolony, or that dou bts had been expressed as
to tbeir authority, for in a proclamation dated on the 19th
.June, 1813, and directing how appeals are to be allowed,
and what security is to be given by appellants, are formal
declarations as to the law of the colon y and the jurisdiction
of the eourts there. The proclamation, whieh, until the
recent Orders in Council, was considered as the legal con-
stitution of the colony, is in the following terms:-


TRINIDAD.


By His Royal Highness the Prince of Wales, Regent of
the United Kingdom of Oreat Britain and Ireland, in
the name and on the behalf of His Majesty.


A Proclamation.
'VHEREAS, by our commission 01' letters-patent under


the great seal of England, bearing date at our court at
Sto James's the 31st day of October last past, we did, in
the. name and 011 the behalf of His Majesty, constitute
and appoint our trust y and well-beloved Sir Ralph James
Woodford, Barí., to be our Governor and Commander-
in-Chief in and over His Majesty's said Island of Trini-
dad, as well as oi" an our forts and garrisons within the
same as in and by the said in part reéited commission or
letters-patent and our instructions therein mentioned and
referred to will more fully appear: And whereas, we,
acting in the name and on the behalf of His Majesty,
have thought lit to issue this our proclamation, and we do
therefore hereby in the name and on the behalf of His


(1) See ante, p. 3 to 16, on [he
gene"al tapie how far the eolonies are
subject to Ihe law of the lDother


eountry.
(2) Ante, 23, and Johnston's Insti-


tutes of [he SpallishLaw, Preface, p. 7.
x2




308 TRINIDAD.
Majesty publish, declare and proclaim that for the present
ánd until OUl' pleasure shall be further signified, the ad-
ministration of justice and police in our said island should,
as nearly as circumstances will permit, be exercised by
our said Governor in conformity with the ancient laws
that subsisted within the same previous to the surrender
of the said island to us, subject to such alterations, regu-
lations, and improvements as may have been since made
and approved of by us: and subject also to such direc-
tions as our saiel Governor shall have receivetl, 01' may
hereafter receive from us, under our signet 01' sign manual,
01' by our order in OU1' Privy Couneil, 01' through one of
our principal Secretaries of State; 01' to such deviations
in eonsequence of sudden and unforeseen emergencies as
may render a departure therefrom manifestly expediento


The proclamation then went on to direct the manner in
which appeals should be aIlowed from the inferior to the
supreme courts in the colony, and from them to the King
in Council. This part of the proclamation is now super-
seded by the Order in Council of QOth June, 1831. (See
ante, 52S0.)


MI'. Maddoek and MI'. Dwal'l'is had prepared questions
relative to the administration of justice in the colon y when
Mr. Henry arrived there with authority to eo-operate
with them, and to act as senior commissioner. Mr. Dwar-
ris was unfortunately compel!ed, very shortly afterwards,
to return to England on account of ill health, and the
examinations were taken by MI'. Henry and MI'. Maddock.
These two eommissioners then sailed for St. Lucia, where,
before the report on Trinidad could possibly be pre-
pared, MI'. Maddock fel! a victim to the climate. The
examinations were afterwards brought to England by
MI'. Henry, and the report was the joint labour of him-
self and MI'. Dwarris.


N o English statutes are believed to be in force in this
island, with tbe exeeption of the Mutiny Acts and those of
navigation and trade, but there are a variety of local
laws made by the authority of the King in Council 01' by
proclamations of the Governor for the time being, by
virtue of the powers incident to his offiee, which latter we
shaIl mention more ful!y hereafter.


The Spanish laws which are of authority in this colony
are such as were in force at the time of the capture of the
island (February, 1797,) and that have not since been re-




TRINIDAD. 809
pealed by Bis Majesty the King of England. Of these
laws there are sorne compilations amI digests; viz. what
is termed the Derecho Real de Castilla, the Fuero Juzgo,
the Fuero Vujo de Castilla, the Fuero Real de España,
the Siete Partidas, Leyes de Es/ilo, Ordenamiento Real,
Nueva Recopilacion de Castilla, the latest edition j No-
vissima Recopilacioll, 01' such of them as were enacted
pl'eviously to 1797; and the Recopilacion de las Leyes de
las Indias.


By a proclamation of the Governor, Sir R. W ood-
ford, (18th December, 1813,) all Orders in Council and
proc\amations are ordered to be enrolled and recorded
in proper books kept for that purpose, and so recorded to
be evidence. .


Spanisle [,aws in Force.
(Observations on.)


By a proclamation of the ]9th June, 1813, the admi-
nistration of justice and poJice is directed to be continued
in conformity to the ancient laws and institutions that
existed previous to the surl'ender of the island, subject to
such alterations as it might be advisable to make therein
from time to time.


Under this authority, therefore, the ancíent Spanish law,
and the Roman law, as its auxiliary, in cases where the
former is defective, may be considered (so far as they are not
restricted by subsequent regulations) as the common and
statute law of the colony, and as binding in all cases not
otherwise especialIy provided for; and that the English
laws and sta tutes, except those regarding navigation, re-
venue, and trade, and the Mutiny Acts, and those made
since the cession of the colony, in which the island is spe-
cially noticed, are 110t binding.


With respect to the British act 5 Geo. 2, c. 7, (for the
more easy recovery of debts in the plantations,) a varíety
of conflicting opinions seem to have prevailed, whethel'
it was to be considered in force 01' not in Trinidad; but
this doubt seems to be done away by the last clause of an
Order in Council of the 8th June, 1816, which is as fol·
lows :-


" And whereas it is expedient to facilitate the proof of
mercantile debts, and to legalize the testimony of clerks,
book-keepers, and others employed by merchants; ít is




7


310 TRINIDAD •
. hereby ordered and directed, tbat tbe declal'ations on


oath of such persons, in all civil proceedings wberein
their employers are parties, shall benceforth be takel1 to
be good and admissible evidence in favour of such their
employers, any law to the contrary notwithstanding."-
Trinidad Commissioners' Rep. 32. .


COLLECTION OF LAWS.


There is no complete printed collection of the Orders in
Council and proclamations, &c. by which changes 01' mo-
difications have from time to time been made in the Spa-
nish law; thougb there is such a printed collection of
those which have been promulgated since the administra-
tion of the government by Sir Ralph 'Voodford; most of
the latter are to be found in Johnston's Institutes of the
Laws of Spain. Of the MS. proclamations offormer Go-
vernors, the judge of criminal inquiry thought no person
had a complete collection; but the chief justice said they
were deposited in the respective offices of the authorities
by which the same had been issued, and that any person
desirous of consulting them might be enabled to do so'
upon application to the respective authorities. .


These manuscript laws may be given in evidence by
producing the original s 01' duly certified copies.-Trinidad
Commissioners' Report, p. 6.


COURTS IN GENERAL.


The courts established in this colony for the administra-
tion of civil justice, at the time ofthe commissioners visiting
the colony, were the Court of Intendant, the Complaint
Court, the Court of First Instance of Civil J urisdiction, the
Instance Court of Vice-Admiralty, and the Superior Court
of Appeal of Civil Jurisdiction; the Governo\' was besides
vested with the special power of exercising the authorities
and jurisdiction, whether appelIant 01' original, which were
theretofore exercised in the Courts of Audiencia in the
city of Caraccas.


The courts established for the administration of criminal
justice, were, at that period, the Court of the Alcaldes in
Ordinary, the Court ofCriminal Inquiry, the Court for the
trial of Criminal Prosecutions, and the Court of A ppeal in
an cases of condemnation to death. Several of these




TRINIDAD. 311
courts and the offices connected with them have lately
been abolished 01' l'emodelled. (3)


The pcrsons usualIy appointed judges in the fOl'egoing
courts, with the exception of the Alcaldes in Ordinal'Y,
(who resemble the assistant-judges in the other colonies,)
are barristcrs. .


Barristers and Attornies.


It is not required that persons acting as counsel in these
courts should previously have been called to the bar in
England. They are admitted to practise as licentiates by
the Governor, exercising the powers of the Royal Au-
diencia. They take an oath for the due performance of
their office.


Theil'license is not (says the chiefjustice) expressed to
be during pleasure, and by the law such licenses are re-
vocable, upon just cause, by the Royal Audiengia.


The judge of criminal inquil'Y stated that the license is
expressed to be during pleasure.


The counsel in this island do not act as attornies 01' 80-
licitors, nor is it required that these latter should have
previously served a clerkship, 01' kept any number of terms
in England 01' in the colony.


It is the practice, howevel', for pel'sons applying for
licenses to act as attornies and solicitors, to produce a
certifica te of sorne practising barrister of the service of
such person in his office, and of his knowledge of the
pl'actice of the courts.


For this license they pay no fees.
They take an oath for the due performance of the


duties of their office.
There is no rule in any of the courts of this island pl'O-


hibiting a party from being heard in person, 01' the resident
attorney of an absent party from being heard in person on
behalf of his constituent.


(3) The Court of Criminal In-
quiry, Tribunal ~f Appeal in all cases
of condemnation to deatb, Superior
Tribunal of A ppeal oí Civil J uris-
diction, and Tribunal of the Royal
Audien¡;ia, have all been abolished
by the Order in Council of the 20th
June,1831. (See ante, 230.)


The offices of Father General of
lHinors, Defender oí the Absent, and
Depositario General, have also been
ahoiished bv the aboye order. And
tbe offices ¿f Taxador, Judicial Re-
feree, Liquidator, and Partidor, have
by the same order heen consolidated, .
so as to constitute one office.




312 TRINIDAD.
No security, the judge of criminal inquiry said, is to


his knowledge give~by these officers.-Trinidad Com-
missioners' Rep. 6, 7.


Court of tke Intertdant (and kerein of Esclleats.)
This court has jurisdiction for the tI'ial of claims of the


Crown, al' the Pise, 01' Exchequer, in respect of debts
due by individuals to the crown, escheat, and the like,
and in 'matters relating to crown lands.


As a court of record it has the powel' of fining for
contempt, and enforcing (the judge of criminal inquil'Y
apprehends) the payment by imprisonment.


The Governor sits as judge in tbis court. and is assisted
by his as ses sor. They receíve in these capacities no salaries.


The fees, &c. which they al'e entitled to under the
docket of 23d July, 1816, are paid into the chest of the
colony.


Property does not often escheat to the crown for want
ofheirs.


The chief justice was 110t aware of any precedent of
slaves being declared escheated; but slaves when es-
cheated would be taken pOiSsession of by the escheator-
general, and worked for the benefit of the crown.


Cases of intestacy among the unmal'ried coloured inha-
bitants are not, it is said, frequent.


, Illegitimate children of an intestate, whose property has
escheated for want of heirs at law, are entitled to one-sixtk
of the property of their ancestor, by way of alimentary
allowance. .


The chiefjudge said he was not aware of any inconve-
nience having arisen from the mode of admillistration of
justice in cases of escheat.-Trinidad Commissioners'
Rep. 7,8.


Court of Criminal Trial.
This court was established by an Order in Councilof


September 16th, 1822, which declares that it shall consist
of the chief judge (as president), the assessor of the Go-
vernor, the alcaldes in ordinary, and the escribanos of the
Civil Tribunal, (who are to act in the same capacíty
herein.)


The court sits in the town of Port of Spain, whenever
there is any cause before it for tria!.




TRTNIDAD. 313
The subject-matters of its jurisdiction are aH criminal


offences committed in the island, with the exception of
petty thefts and misdemeanors, which are heard before
one or other of the alcaldes in ordinary, under the 18th
and ] 9th clauses of the above-mentioned Order in Council.


The Attorney-General prosecutes ofl{mders in this
court.


Offences committed by free coloured persons against
slaves, as well as others, are tried in this court; but the
chief justice added (speaking of offences by free persons
against slaves) " none such have yet be en brought before
it."


Slaves, as well as free persons, are tried in this court
under the Order in Council of the 16th September, l8~2,
and the proceedings, as regards the modes of trial amI its
incidents, respite, pardon, execution, &c., are in every
respect the same as those against free persons. Legal
assistance is afforded to them, if the owner will not incur
the expense.


All offences which would be capital in a free person are
also capital in a slave.


Prosecutions are opened by counsel, who are not limited
to a statement of facts, but may make any observations
relevant to the case for tria!.


There is no jury in this court, but counsel address the
court for the prisoner, and no inconvenience, it is stated,
has been found to result from this practice.


The depositions of the witnesses before the judge of
criminal inquiry, are, by the practice of the court, always
used on the trial; but viva voce evidence is also required
and received.


The indictment and pleas in this court differ from those
used in England; they are entered in record, and su eh
record s are preserved in the oflice of the deputy-secretary
and registrar of the Cabildo.


The trial is according to the Spanish law, subject to the
Order in Council of 16th September, 1822.


The chief judge alone, as president, sums up the evi-
den ce to the court, and afterwards takes their opinion as
to the guilt 01' innocence of the prisoner, commencing with
the junior member. He also, as president, pronounces
the sentence of the court. '


The judgment of this court canno; be arrested after
trial, but is final in aH cases, except those of condemnation




314 TRINIDAD.
to death, in which case an appeal lies to the Governor
in Council, under the order of 16th September, 1822.


The Governor has the power to reprieve and respite,and
to pardon in aH cases except treason and wilful mur der.
He founds his opinion, it is supposed, on the original pro-
ceedings and on the report of the chief justice.


A nolle prosequi is never ente red np by the Attorney-
General; this power is not defined by the Spanish Iaw,
nor by the Order in Conncil constituting this comt. The
records of all proceedings in this court are deposited in
the office of the deputy-secretary and registrar.-Trini-
dad Commissioners' Rep. 9, 11.


Court qf Pirst Instance qf Civil Jurisdiction.
This court derives its authority under the Order m


Conncil of 16th September, 1822.
The subject-matters of its jurisdiction are aIl civil suits


and actions in the colony. It is said also to have jurisdic-
tion over matters in equity.


It is composed of the chief justice, the judge of criminal
inquiry (when the duties of his office will permit), and the
two alcaldes in ordinary.


The chief justice receives a salal'y of f:~OOO sterling
per annum, his fees are regulated by the docket of 23d
July, 1816.


The chief judge, and judge of criminal inquiry, and one
of the alcaldes in ordinary are sufficient to form a court.


The chief judge afid judge of criminal inquiry are
lawyers by profession. The alcaldes in ordinary are cho-
sen by the board of Cabildo, from the most respectable
inhabitants of the colony.


The officers of the court are one escribano (or se cre-
tary), one clerk to the judge, and one judicial referee,
liquidator, and partidor, all appointed by the Governor,
and holding their offices during his pleasure.


The clerk of the judge receives a salary of f:500 Cllr-
rency per annum, and no fees.


The pleadings and the rules of evidence in this colony
are derived from the Spanish law. The latter have been,
however, in sorne respects, altered by the several procla-
mations issued for that pUl'pose.


In case of an absent defendant having no attorney in
this island, the rules of this court require service of pro-
cess against him to be made upon the defender of the




TRINIDAD. 315
absent, and among absentees are Íncluded those persons
who have never been in the island.


There is no power of arrest before judgment 01' execu-
tion, except under very special circumstances.


The attachment of debts due to a defenuant in the
hands of a third person is seldom resorted to here. It is
not, however, attended with much expense.


The chief justice does not consider the act of 5 Geo. 2,
C. 7, for facilitating the recovery of debts in the West
Indies, to be in force in Trinidad. The judge of criminal
inquiry expressed his doubt on this point. (But see
ante, 75, 76, 309, and notes.)


In an action on a bill of exchange 01' promissory note,
the practice is for the plaintifI' to present his account for
principal, interest, damages, and expenses; and if such
statement be objected to by the defendant, it is either es-
tablíshed by proof, 01' referred to the judicial referee for
his reporto


Execution operates first against personal property; in
uefault thereof, against real property; and in default of
both, against the persono


Executions are never, when taken out, suspended and
use u as securities.


The costs in this court are taxed by an officer appointed
for that purpose.


There is no process in the Spanish law exactly re-
sembling the action of ejectment; but a remedy is afforded
for the attainment of the same end.


With respect to adverse possession as a bar to eject-
ment, the chief justice said ten years' possession, with title
and good faith, if the real owner were present and of age,
would be a bar; if absent, twenty years; but thirty years
would be a good bar in any case, except as against the
crown and the church. The judge of criminal inquiry
said the rule of prescription was thirty years generally as
to realty, &c., even though pbssession was acquired with-
out good faith; forty years as to the crown, except as to
criminal and civil jurisdictions, and duties and tributes.
Forty years are considered time immemorial.


It arpears that this court has jurisdiction to relieve in
cases where a deed has been lost, 01' where a mistake has
been made in preparing a deed.


A mortgagor can in aU cases redeem the mortgage pro-
perty by paying the mortgage money and interest. Mort-




:l16 TRINIDAD.
gages in fee do not seem to be known to the Spanish
law.


A mortgagee can recover his mortgage money not paid
at the time appointed, or obtain possession of the mort-
gaged property by a suit in this comt.


Tacking seems to be known in practice at Trinidad as
well as in England.


Tl'Usts are enforceable in this court, and executors 01'
trustees can be called upon to give an account; such
account is taken by the court itself, or by reference to the
judicial referee.


1t is not necessary t11at every agreement l'especting real
or personal estates should be in writing; such agreement
can be specifically enforced 01' annulled.


Fl'auds are considel'ed in this court,. and relief given
where fraud is established.


The property of intestates is distributable aceording to
the rules of succession [¡nd deseent by the eivillaw.


This court has jurisdiction In cases of bankruptey and
infaney, and in respect of the guardianship and main-
tenance of infants, also in cases of lunaties and idiots.


Cession of property, i. e. where a debtor voluntarily
cedes an his property into the hands of the court for the
benefit of his ereditors, is in practice here. It is not limited
to any particular class of persons.


So also is the compulsory remedy ol'iginating with cre-
ditors to obtain payment from insolvent debtors, which is
termed a concurso of creditors. I


The court has jurisdiction in cases of application by a
wife for separate maintellance on account of the mis con-
duct of the husband. The chief justice said he was not
aware of any means of obtaining a divorce.


Legacies can be sued for in this comt; and if a hus-
band sue for a legacy left to his wife he is not bound to
make any settlement on his wife 01' children in respect
thereof.


There are no proceedings in this court similar to in-
junctions in England; but the law afiords a remedy in a11
those cases in which injunctions are usually applied for,
such as to stay waste,' &c. by an action to restrain, 01' to
obtain secmity till the question is dccidcd.


The court has jurisdiction in an cases of manumission
by deed or will.


Formerly a preference was given to all debts necessarily




TRINIDAD. S17
incur1'eJ for tbe expenses essential to a plantation, but
tbis no longe1' exists.


To this court belongs jurisdiction to g1'ant administ1'a-
tion of pmperty of pe1'sons intestate, and as to other
matte1's connected with the powers of the Cou1't of 01'-
dinary in the other Britisb Colonies.


AH· wills affecting real and personal property in this
island, and executed here, are proved before tbe Gover-
nor, and al'e recorded in the office of the deputy sec1'eta1'y
and registrar.


There is no provision for appeal in case of the Gover-
nor's refusal to 1'eceive a will for proof.


Cases of contested wills are decided in this court.
AH wills to take effect ought to be registered within


one month after tbe decease, of the testator, or after tbe
executol' has notice of his decease, and of his own appoint-
ment as executor. lt is necessary that al! deeds should be
registe red, but no time is prescribed fol' such registry.
",'iIls are, however, admitted to be registered at any time
after the expiration of the month. Descents are guided in
this colony by civil law.-Trinidad Commissioners' Rep.
12,16,69,91.


Appeals fo the !f.ing i,i Council.
Appeals to the King in Council wel'e provided for by


pl'oclamation of 19th June, 1813, where the sum in ques-
tion is above ,[500 sterling, 'rhe expenses are establisbed
by the docket of 23d July, 18lfi.-Trin. Comm. Rep. 18.
Appeals are now regulateJ by the Order in Council of the
20th June, 1831. (See ante, 280.)


Court 01 Admiraltu,
Tbe Court of Vice-Admiralty in this island derives its


authority from the Crown, and the subject-matters of its
jurisdiction are maritime cases, 01' cases arising on the
high seas, not provided fol' by statutes 28 Hen. 8, cap. 15,
and '16 Geo. 3, cap. 54. It exercises also the ju1'isdiction
of a Cou1't of Exchequer in England over cases of fo1'-
feitu1'es and penalties incu1'1'ed by breach of the acts of
parliament relating to trade and revenue in the colonies.


The Chief JlIstice is the sole judge. He is appointed
by the Governo1' and confirmed by the Lords of the Ad-
miralty, holding the office during pleasu1'e, and removable
by the allthority appointing him. .


,




318 TRINIDAD.
The officers of the court are a registl'ar and marshaI.


The registrar is a patent officer, the marshal is appointed
by the Governor. They hold their offices during plea-
sure, and they give no security. They are, however,
under the control and superintendance of the court; they
ha ve no salaries, but receive fees.


The court follows, in its decisions, the civillaw for ma-
ritime cases, and the aets of parliament for revenue cases.


Proceedings for the reeovery of seamen's wages are
very seldom instituted in this court.


There are no Admiralty Sessions held in Trinidad, and
no authority exists there for the trial of piracy and the
like.-Trin. Comm. Rep. p. 19, 94.


Complaint Court. (4)
The Court of ~omplaint in this island has a summary


jurisdiction in respect of demands not exceeding 1000
dollars (01' .t500 currency), the power of which is exercised
by the chief judge, under a proclamation of 31st Ja-
nuary, 1823. He receives no salary in this especial capa-
city. The fees which he reeeives are those allowed by
the docket of 25th N ovember, 1823, which also regulates
the costs on suits in this court.


This court tries cases of unliquidated damages.
Advocates and solicitors frequently plead in this court,


but the parties may, in all cases, support their own
causes.


The plaintiff and defendant may be examined on oath
in this court, under all circumstances.


Court 01 Alcaldes in Ordinary. (5)
The Alcaldes in Ordinary (who, it will be observed, sit


with the Chief Justice in the Court of First Instauce of


(4) By the 22d section of the
Order in Council of the 23d April,
1831, the Court of Criminal Illquiry,
the Court of Audien!j'ia, the Complaint
Court, the Court of the Alcaldes in
Ordinary, and the Court of the Al-
caldes de Barrio, were all abolished ;
but that order has been Susl)ended by
the order of the 20th J une, by the
23d section of which only four of
these courts, namely, the Court of


Criminal Inquiry, the Tribunal of Ap-
peal in al! cases of condemnation to
death, the Superior Tribunal of Ap-
peal of Civil Jurisdiction, and the
Tribunal of Royal Audien"ia, are abo-
Jished. During the continuance of
the suspension of the first order, the
three last conrts mentioned in it as
abolished, will of course cOlltinue their
fUllctiolls. See ante, 2r4, 280.


(5) See the last note.




TRINIDAD. 319
Civil Jurisdiction, as assistant judges,) are also empowered
to hold a separate comt by an Order in Council of 1 st
September, 18::22, which, in clauses 18th and 19th, directs
that "the alcaldes in ordinary shall, by turns, two days in
each week, or oftener ifnecessary, sit in open court for the
hearing and determining of aH such petty thefts, assaults,
bl'eaches of the peace, contraventions of the police laws
and regulations, and aH similar misdemeanors, as by the
chief of police, or by his assistants, shaH be brought be-
fore them; and the alcalde shall have power to adjudge
theprisoner, on a verbal and summary hearing ofthe parties
in the prisoner's presence, to a fine not exceeding .ESO cur-
rency, or to imprisonment for ·any term not exceeding two
months, with or without hard work, or to work in chains
in cleaning the streets, or other public work, for any time
not exceeding the like term, or to corporal punishment."


The alcaldes in ordinary are appointed annualIy by the
illustrious board of Cabildo, and confirmed by his Excel-
lency the Governor, as president of that board.


They are chosen from among the most respectable in-
habitants of the colony. They receive no salary, fees, or
~ other emoluments.-Trin. Comm. Rep. Q~., 21.


Alcaldes de Barrio. (6)
By proclamation of 19th January, 1814, jurisdiction is


given to the A lcaldes de Barrio in their several districts,
to entertain civil causes or pleas of debt to the amount of
twenty dollars, with an appeal to the chief judge if made
within five days after sentence.


The Alcaldes de Ban'io are also officers of the govern-
. ment for the police of the town.


They are elected by the illustrious board of Cabildo,
from amo.ng the freeholders of the town, and continue in
office for one year.


They receive no salary or emoluments.-Trin. Comm.
Rep. 21, 101, 181.


Escribano, o'r Registrar oi tke Supreme Court.
This officer is appointed and removeable by the Gover-


nor. No confirmation from home is necessary.


(6) See the flote (4) ill tile precediflg page.




320 TRINIDAD.
He has río salary, but is paid by fees. He records the


proceeding& of the court, takes minutes of legal points,
signs orders, and issues the notices of these orders to the
several parties in the cause, (for which he eharges by the
tariff,) and in cases of bankruptcy 01' concurso he notifies
the fact to each creditor, however trifling his claims,
(which is very burdensome to the estate.)-Trin. Comm.
Rep. 24, 178.


Registrm' of Deeds and Wills.
This is a patent office, and ¡ts duties are discharged by


a deputy. He is paid by fees and acts as clerk of the
couneil, which duty is attached to his office of registrar.-
Trin. Comm. Rep. 25, 182, 196.


Alguacil, Mayor, 01' Provost frfarshal.
This officer is appointed by the Governor and remova-


ble by him. He gives security in .f2000.
He is paid by fees according to the tariff, and executes


process, &c. in the differeJ]t districts of the island, by de- \
puties appointed by him.-':'Trin. Comm. Rep. 26, 1B6.


Cabildo.
The " Illustrious Cabildo," as it is termed, of the town


of Port of Spain, may be described as being in the nature
of a corporate body and possessing the right of making
eertain municipallaws and regulations.


Its powers originally were very extensive, and certain'
of its members (for instance, the Regidors, who had equal
rank and honours with the nobility,) were entitled to great
privileges.


One of these, it is said, was the power to suspend the
execution of any of the orders of ·the government that
might be deemed impolitic 01' unjust, until a representation
could be made to the Sovereign; and on the proposed
introduction of the Orrler in Council, 10th March, 1824,
fol' regulating the treatment of slaves, application was ac-
tually made to the Cabildo to exercise theil' powers, which
they very prudently declined to do. Since, however,
Trinidad has been in possession of the English, and a
councíl has been established, the greater part of those




. f ..


TRINIDAD. 321
functions (of such at least as under the new system it was
found desirable to retain,) have been tr:lllsferred to the
Govel'llor and Councí!. And the powers of tbe Cabildo
seem at present to be confined entirely to matters of mi-
nor police, such as to regulate the price of provisions, the
cleanliness of the markets :llld streets, the construction
and repairs of high-roads and bridges, &c. &c.


The Cabildo is composed of the Governor, two Alcaldes
in Ordinary, the ·Procurator Syndic, and ten Regidors.
Of the latter, two have becn rendcred perpetual by the
prcsent Govel'llor, the others, like the alcaldes, serve in
rotation, four going out of office annually, after having, in
conjunction with the remainder of the Cabildo, elected
four others as their successors, whose names are then
submitted to the Govcl'llor for his approval.-Trin. Comm.
Rep.50.


Caol Attorney.
This officer is appointed and remov~able by the Cabildo,


01' city corporation; he has a salary vi ±:300, but no fees.
He is liable for escapes. In certain cases he acts on be-
halr of prisoners as their advocate, though he is not a
lawyer. He never receives a prisoner witbout a written
c"'t1mmitment stating the nature of the offence.-Trin.
Comm. Rep. p. 27.


Persons of Cotour.
Free persons of colour can sue and be sued, and labour


under no disqualification as regards their evidence.
They are tricd for capital and lesser offences as white


and other persons are, and in the manner prescribed by
the Order in Council, 16th September, 1822.-Rep.
Trin. Comm. 28.


Particular Laws.-Ganancias.
The right of the wife to a partnership in the property


acquired during marriage by onerous title, is termed
"ganancias." Thi!¡ right is founded on the partnership
01' society supposed to exist between the husband and the
wife; because she, bringing her dote, gift, and parapher-
nalia into co-partnership, and he, bis estate and property
which he pos ses ses, it is directed that the gains resulting


y


; Seas
• . ¡~




TRINIDAD.


from the joint employment of this capital be equally di-
vided between both partners.


"Ganancial property is all that which is increased 01'
mulfiplied during marriage by onerous cause 01' title, and
Bot that which is acquired by a lucrative one, as inherit-
ance, donation, &c.


"Immediately upon a divisÍon being made of this ga-
nancial property, each acquires an absolute dominion as
to their moieties.


"AH property of the husband and wife is presumed
common 01' ganancial, until it be proved to be the sepa-
rate property of eithel'.


'. Pl'ize money obtained in wal' by the husband is not
ganancial, unless his outfit as a soldier fol' the campaign
was at the joint expense of husband and wife. .


" The fruits, proceeds, 01' rents of evel'y description of
property belonging to both husband aml \Vife, are con-
sidel'ed gananciales.


" The crime of one cIoes not forfeit the property of the
other in the ganancial partnership.


" Gains and ]osses being common, the debts contracted
during marriage are to be paid out of tbe common pro-
perty.


" But if the wife renounces the ganancias, she <loes not
pay half the debts." Nrwa,.-Recop amI Fue Real.-Trin.
Comm. Rep. 34, 35. ~ ,


Wills.
It appears that there is no Court of Ordinary at Tri-


nidad, hut that wills are pro ved before the Governor
under the 8th clause of the proclamation of 5th February,
1814, and that there is no provision fol' appeal in case of
his refusal to receive ·a will for proof; nOr indeed can
there well be, when he is the sole judge of the Court of
Appeal in the island. This seems to call for some re-
medy.-Trin. Comm. Rep. p. 51.


There are two sorts of wills, open (abierto), and closed
(cerrado). The open 01' nuncupative will ought to be
executed befo re a public escribano ang three witnesses (7)


(7) By Order in Conneil, 8th
J une, 1B16, al! wills, &e. made witlJill
(he island of Trinidad shall be atlestC'd
by three male witne"es, domiciliated


inhabitanls of lhe place and qua,"ter
whercin the same .hall b~ made, 01'
tW(I snch witnesses and the command·
nnt of such quarter.




TRINIDAD.


inhabitants j and if thc testator is blind, five are neces-
sary j and if there is no escribano, five witnesses of the
place are necessary, 01' seven non-residents. The closed
01' written will, which is made in secret, is delivered to the
escribano, signed on the outside by the testator and se-
ven witnesses, with the attestatian of the escribano.


The spendthrift cannot make a testamento He shall
be prohibited by the judge from alienating his property.


With respect to the mode in which a testator may dis-
pose of his property, it is an indisputable principIe of the
laws of Castile that if he have children 01' grand-children
he must necessarily institutc tbem his heirs, and can only
dispose in favour of strangers (among whom collateral re-
lations are included) of the remnant, of one-fifth of his
property. In default of these descendants he must devise
his property in favou!' of his ascendants, father, grand-
father, &c., with the exception of one-thil'd.-Johnston's
Inst. of the Laws of Spain, 110 to 115.:,


JJIoTtgages and Il!JIJotltecations.
These are treated alike by the Spanish law, except


that the subject of mortgage is considered incapable of
delivery, while the subject of hypothecation may be de-
livered.


The persan to ",hom the pledge is made acquires,
1st, a right in the thing constituted a security for the sum
due; 5?d, It is to be considered a species of alienation;
3d, The credito!' may seU the pledge (upon notice) unless
he is paid the debt.


The thing being once mortgaged cannot be mortgaged
a second time, except to the amount which it may exceed
in value the first debt. He who mortgages property
already mortgaged shall be fined, if he acted from bad
faith.-Johnston's Inst. Laws of Spain, 156 to 162.


Prescription.


There is a prescription of three years as to the posses-
sion of personal property, (except with mortgagees or
lessees, who being iñ upon the title of anothel' can never
prescribe against him,) and the salaries or wages of apo-
thecaries, spice-vendors, and other tradesmen 01' mecha-
nics, in respect of their wares and work, and likewise ,as
to the fees of advocates and solicitors.


\ ' q ,,'




324 TRINIDAD.
. There is a prescription of ten years in which real pro-
perty is acquired among persons present, and in which
the executive action is barred. Another of twenty yeal'S,
which pr~scribes the right of absent persons to real pro-
perty, and the personal action and execution granted
thereon.


Actions, real, hypothecary, and mixed, are prescribed
in thirty years.-Johnston's Inst. Laws of Spain, 105 to
109.


Proceedings in Cases of Bankruptcy and Concursos.
By the ancient Spanish law on this head, the insolvent


debtor is at liberty to make a cession of his property,
which is termed concurso voluntario y p,'eventivo; and
any person, whether a trader 01' not, may adopt this
measure.


But when the cession takes place at the instance of the
creditors, it is termed concurso necessario. In boíh cases
the property is distributed, and the creditors ranked
under a judicial proceeding which is termed a concursus
creditorum. - I


By Order in Council of 5th August. 1822, an future
privileges 01' preferences, for repairs or supplies, are de-
clared to cease; and by the same order, l'eciting the
previous ones in this matter, all sugar, coffee, cocoa, 01'
other estates are rendered liable to be taken in execution
witbout regard to tbe value of the esta te 01' tbe amount of
its debts, but it gj.-es the court a discretionary power of
staying- the sale of the whole, 01' any part thereof, under
equitable circumstances.


Sorne doubts having at'isen un del' that clause of this
order, which gives the court a discretionary power of stay-
ing sales, without any limitation of time, it was by a subse-
quent order of Februal'Y 92d, 1825, declared that it should
not be competent to the court to stay the sale of the whole
01' any part of tbe estate at any time fol' a longel' period
than six months, Ol' fol' more than two years on the whole.
- Trin. Comm. Rep. 51, 52.


Eucution.


AH instruments, pl'omissory notes (vales), amI writings
acknowledged by the debtor, are entitled to pl'ompt execu-




TRINIDAD. 325
tion. In the same manner are bilis of exchange, as against
the acceptor, after being accepted, and against the drawer,
provided they be protested and he acknowledge tbem.-
Johnston's Institutes of the Laws of Spain, 35~, 353.


Costs.
It appears tbat the advocates charge what they pIease


for retainers, conferences. writing of Ietters, &c., and that
such costs are never taxed.-Trin. Comm. Rep. 53.


Cot·oners.
The office of Coroner does not exist in this coIony.-


Trin. Comm. Rep. 54.


Arrests.
There is no power of arre~t in this coIony upon mesne


process, except on the authoritl of the Roman Iaw, when
the party is susper:tus de fuga. Each person about to
leave the country must obtain a pass from the Governor,
and advertise his intention to leave, which advertisement
may be underwritten and stopped at the secretary's office
by any creditor.-Trin. Comm. Rep. 54.


!




( 3;26


FlONDURAS. (1)
-


THlS possession of Great Britain, though one of consider-
able extent and importan ce, has' not yet been dignified
with the name of a colony. On one occasion it was ex-
pl'essly deciclcd not to be entitled to the appellation of a
territory belonging to His Majesty, at least so fal' as the
Navig~tion Acts wel'e concerned. (Chitty on Commerce,
vol. 1, p. 636.) According to this decision ships built
there would not be privileged to engage in the direct trade
between the United Kingdom and the British possessions
in America. The recent Navigation Acts have removed
this disabilíty, and llaye in terms l'ecognized the settle-
ments at Hondmas as "British." 1'11e 3 & 4 Wm. 4,
c. 54, s. ] 4, expressly enacts "that aH ships built in the
British settlements at Honduras, and owned and navigated
as British ships, shall be entitl~d to thc privileges of Bri- '
tish registered ships il) a11 direct trade between the
United Kingdom 01' the British possessions in America
and the said settlements."


The settlement at Honduras is governed by an officer
styled a Supcrintendant, who is appointed by the Crown.
A constitution, sanctioned by an officer in commission
under His Th'lajesty, framed many' years ago, has been
since tacitly at least recognized by the Crown, and is
still acted upon; amI as a decisive mark of the sub-
ol'dination of the settlement to the power of this country,
appeals are entel'tained by the Pl'ivy Council from the
decisions of the COUl'ts in the settlement, one of which
has been constituted by two acts of the British Parlia-
mento (Q) A1though, therefore, it still continues inferior
to oUt' acknowledged colonies in titular dignity, it may
well deserve some notice in tbis place.


The settlement of Honduras is situated in the province of
Yucutan, between tbe ;:,eventeenth and nineteenth degrees


(1) See "ule, p. 1, 11. ( j) alld p. j 9. (2) 3 Rep. W. 1. C. 2d series, p.
J, 1,1, Scc po!>t, 3~~}.




HONDURAS. 3Q7
of no1'th latituuc, and the eighty-ninth amI ninetieth degrees
of west longitude. The line which ineludes it commences
at the mouth of the Rio Hondo, foUows the cou1'se of, and
afte1'wards 1'uns paraUel with that stream for about thirty
miles, then turning southward passes through N ew River
Lake in a straight line to the river Balize, up which it
ascends for a considerable distan ce, and then again pro-
ceeds south till it reaches the head of the Sibun, the
windings of which river it pursues to the coast. (3)


HISTORY AND CONSTITUTIoN.
'~


From the earliest period of the settlement up to 1763,
the right of cutting logwood in the Bay of Campeachy
was a matter of vehement dispute between the English
ami Spanish governments on behalf of their respective
subjects. On the general pacificatioI), which took place
in that year, the King of Spain agreed to aUow the set-
tlel's to reside within a certaia distance on condition that
all the fortresses then existing should be destroyed, and
that no other should be cl'ectcd. On his part he undel'-
took, in case of a wal', to grant six months for the removal
of British pl'opel"ty. ,


In 1779 this undertaking was gl"ossly violateu. At the
close of the war which then ensued, the settIers, though
they obtained no indemnity fOl" the previous injury, were
l'e-established on the same terms as fOl"merly, and thc
l'ivers Balize and Hondo were assigned as their limits.
By a convention which \Vas coneluded with Spain
in 1786, these limits were extended southward to the
Sibun, in consideration of the British relinquishing their
establishments on the :Mosquito shore. Honduras was
not mcntioned either in thc treaty of Amiens 01" at the
general pacification in 1815; but though the l'ight of
Great Britain was not on either of thcse occasions recog-
nized, neither \Vas it disputed; and the fact that it was
not expressly referred to, affords a strong ground for
believing that it \Vas considered, by the persons who
negociated these treaties, as a settled acquisition of Eng-
land, and therefore no more required to be tecognised as
such than did Barbados or Jamaica, 01" any other long


(3) '1 D. Edw. 'tM.




328 HONDURAS.
acquired and undisputed possession. There seems there-
fore but little ground for the alarm felt by the settlers at
not having been mentioned at the peace of Amiens, nor
the doubts that sorne of them are believed to have enter-
tained in consequence of the similar omission of all notice
of the settlement in the treaty of 1815, the more so since
the c;ondition on which their right to a settlement was
recognised, namely, the relinquishment of the establish-
ments on the Mosquito shore, has been strictly per-
formed.


In the year 1765 the inhabitants agreed to acode of ...
regulations presented to them by Sil' William Burnaby,
the commanding officer of His Majesty's ships on the Ja-
maica station, to the strict performance of the articles of
which code they bound themselves by an instrument under
their hands and seals.


In pursuance of these regulations five of the principal
inhabitants were chosen from amongst themselves as ma-
gis trates, who were invested with power and authority to
hold courts of justice, and to tryand determine all dis-
putes. A jury of thirteen was chosen in the same manner
for their assistance, and the determination of tbis court
was declared to be final.-3 Rep. 2d series, W. l. C. p. 3.


They fUl'ther covenanted together to abide by and
obey all such orders and l'egulations as might thereafter
be made by the justkes, in full council, being first ap-
proved of by a majority of the inhabitants; and that the
commanding officer fol' the time being of any of His Ma-
jesty's ships of wnr which might be sent thither, should
have fun power to enforce and put the aboye into execu-
tion. Regulations were at the same time agreed to re-
specting the levying and collection of taxes, the cutting of
logwood, &c. &c.


This code, which bears Sir WiUiam Burnaby's name,
was printed at the expense of the settlNnent in 1809, with
such additional regulations and alterations of the original
articles as had in the intermediate time been found ne-
cessary.


Since the last namea period, further additions to this
code have from time to time been made by the inhabitants
at their public meetings,-by committees chosen for that
purpose,-and by the magistrates presiding in the several
tribunals which were cl'eated as aboye mentioned j which
rcglllations, thol1gh of course they cannot exactly be con-




HONDURAS. SQ9
sidered as having the effect oflaw, any more than the ori-
ginal code, are yet by common consent of the inhabitants
deemed to be binding upon them, and as such are strictly
acted upon and enforced. It may not perhaps be alto-
gether improper to state here briefly, the course which is
generally pursued when an individual of the community
is desirous of int:.:'lducing a new l'egulation which is to
undergo the solemnity of an "enactment." Such indivi-
dual causes a public notice or requisition to be posted at
the court-house at Belize, calling a meeting oi" the ma-
gistrates and inhabitants of the place, on the particular
day expressed in the notice, which~ it is understood must
.be stuck up at least twenty-one days before the day
named for the meeting. On the arrival of the day ap-
pointed for the purpose, the magistrates and inhabitants
assemble, when the proposition contained in the notice is
discussed, and the majority of those present on the occa-
sion determine the question; after which, if the measure
agreed to at the meeting receive the assent of the Super-
intendant, it is considered a law of the settIement, but not
otherwise.


In this anomalous state of things, say the commissioners,
it is a matter of considerable surprise that the meetings
dignified with the name of courts should be conducted
with a regularity and decorum which will bear no dis-
advantageous comparison with the proceedings, in this
respect, of the regularly constituted tribunals in most
of the colonies visited under the commission.-3 Rep.
w. 1. C. 2d series, p. 4.


COURTS IN GENERAL.


The only court th;lt can strictly be said to be IegalIy
constituted in this settlement is that created under authority
of the British Acts of Parliament 53 Geo. 3, c. 53, and 59
Geo. 3, c. 44, for the trial of murders, manslaughters,
rapes, robberies, and hurglaries.


The other tribunals in which criminal and civil justice
respectively are administered, are courts instituted by
agreement of the inhabitants among themselves about the
year 1787. The titles and jurisdiction of these latter
were described as follows :-


The Grand Court, instituted by an enactment of the
public meeting for the recovery of debts aboye the sum of


í
; ¡
!
J


t
I
l' ¡
f
i ¡
I ,


,


r
'".




330 HONDURAS.
cl'1O, trespasses, assaults, and batteries, actions of damage,
and attachments.


The Summary COUl't for the recovery of debts of 1'10
and under, and assaults of a minor degree.


There is no Court of Vice-Admiralty here; and in
answer to questions on tbis head, the commissioners were
told tbat when cases occur requiring the decision of such
a court they are sent to Jamaica, to tbe very great incon-
venience of the settlement.


The law of England, it was said, was always applied,
" except where local circumstances prohibited its applica-
tion," and on inquiry from what source the settlers de-
rived tbeir local laws, the commissioners were answered,
" from the establishment of the settlement, and before the
British government gave it protection, the inhabitants
formed an assembly for the enactment of laws, which re-
mains in existen ce to the present period; but since the
granting protection by the British government it has been
invariably the custom to obtain the sanction of Bis Ma-
jesty's Superintendant, who possesses the powel' to allow
01' disapprove of such part as he shall deem tit." This is
the form of government created by the inhabitants them-
selves and described aboye.


The English act, 5th Geo. 2, c. 7, "fol' tbe more easy
recovery of debts in the plantations," is considered in
force here, and " practicalIy acted upan."


The writ of habeas corpus is not known in the settle-
ment, and in the event of illegal ill1prisonment the usual
method of redress is dcscribcd to be "by an action of da-
mages issued out of tke Grand Court, and addressed to
the provost marshal general."


Bail is said to be ,Ildmissiblc here {, according to the
law of England."


The principIes of the English law of descent are said to
be applied here; but there is no such thing as freehold
property known in the settlement, British subjects being
supposed (though it would se cm erroneously, see ante,
S9Z7,) to possess no territorial rights there.


The laws which in England govern the distribution ofr
personal property in cases of intestacy, are aIso acted
upon here, with this peculiarity, that where no legitima te
llCir appears, "iIIegitimacy inhcrit" by next of kin."


In the event of pél'SOnS in the settlemcnt dying without
a wiII when the (known) heil's 01' next of kill are absent,




HONDURAS. 331
the-magistrates, "acting as a Court of Ol'dinary, issue
]etters of trust," and take "security from the trustees
and examine their accounts annually."


They al8o, in the execution of the same functions,
exercise the power of appointing guardians when neces-
sary, taking bonds to ensure the faithful administration of
their trust, examining their accounts, &c.-3 Rep. Qd se-
l'Íes, W. l. C. p. 4.


In the case of wills, the only proof requireu seems to be
that of the testator's signature before thc magistrates acting
as a Court of Ordinary, if the will be in the settlement; if
in a foreign country, before a competent tribunal. Wills
are required to be recorded.


Nuncupative wills are admitted agJ:.eeably to the prac-
tice in England; and there are no restrictions or limita-
tions to the power of disposing of property, real 01' per-
sonal, by will.


As regards powers of attorney, if they are executed
according to the forms of the country in which they are
made, they are he1d good and valid in the settlement.


N o counsel, attornies, 01' solicitors act professionally in
any of the courts here, nol' indeed are tbe1'e any in the
settlement, as no encouragement is aflorded them, the
parties interested in the suits appearing and being heard
in persono


Persons incapable of paying the necessa1'y expenses of
a suit are allowed to prosecute and defend their claims in
thc courts at the expense of the settlement.


No marriage can be celebrated here wiehout a license
first obtained-from His Majesty's Superintendant 01' pub-
lication of the hanns; and tbe widow is considered as
entitleu to one-thi1'd of the whole property of the deceased
after payment of his debts.


The rights of the erown are, it is said, vested in the
person of the Superinttndant. .


The courts of the settlement will respect and confirm
the judgments of foreign courts of competent jurisdiction,
in aH cases except that of outlawry. . Six months' resi-
dence in Honduras is required before a stranger, though
a British subject, is considered to have acquired a right of
estabIishing himself in trade as an inhabitant.


There are no regulat.ions in this settlement similar in
principIe or effect to the English bankmpt ]aws.


Twenty-one days' 110ticc of intention to depal't is re-




332 HONDURAS.
quired to be given before a person can leave thOe settle-
ment, and it is also necessary to obtain a pass from the
Superintendant.


Creditors can prevent such departure by entering a
caveat in the secretary's office, but they may be called
upon in tbis case, at tbe superintendant's discretion, to
give security to answer condemnation in costs and da-
mages, upon subsequent judicial proceedings on the part
of the person whose departure is so prevented.-3 Rep.
2d series, W. l. C. 5.


Higlt or SlIpreme Commission Court.


The judges (none of whom, it may be remarked, receive
any salary or other emoIuments of office,) are directed by
the act 59 Geo. 3, c. 54, to be "such four 01' more dis-
creet persons as tbe Lord Chancellor of Great Britain,
Lord Keeper, or Commissioners for tbe custody of the
Great SeaI of Great Britain, sball from time to time think
fit to appoint" in the manner therein specified. By vir-
tue of this power, a commission under the great seaI has
been issued, nominating seven persons to try, hear, deter-
mine, and adjudge the crimes therein enumerated, any
three of the said persons constituting a comt.


The judge advocate, wl:1o is also appointed by the
judges of this court, conducts aIl prosecutions. A grand
jury, to tbe number of tbirteen, is impanneIled, being se-
lected from a number summoned by the provost marshal
general from amongst the most respectable inhabitants of
the settlement.


They choose their own foreman,. ana are sworn by t)le
same form of oath ai!; is prescribed in EngIand.


The bilis of indictment are sent to them from the eourt
by the hands of the officer of poliee, who is sworn as
keeper of the granel jury.


lt appears to be tbe practice of the grand jury to exa-
mine witnesses, both on the part of the Crown anel the
accused.


A petit jury, to the number oftwelve, is also summoned
for this eourt by thc provost marshal general; they are
chosen in the usual way by ballot, and liiworn before tbe




HONDURAS. 333
court; the prisoner having the same power of challenge
in respect to them as is accorded by the law of England.


The prisoner may likewise enforce the attendance of
his witnesses by a writ of subpccna. It seems to be
unusual, except in particular cases, to allow witnesses
their expenses.


The Superintendant of the settlel11ent, acting as presi-
dent of the court, pronounces its sentence; and he, it
appears, has hitherto exercised the power of reprieve and
pardon.


A prisoner when acquitted is il11l11cdiatE'ly set at liberty,
and is liable' to no charge for fees, the public paying aH
expenses.


The following are the officers of this court, who are all
appointed by the judges thereof; ¡;iz. the judge advocate,
the clerk of the court, the assist,mt clerk of the court, the


# provost l11arshal general, and the police oflicer.
The salary of the judge advocate i8 f\xed at ±:50 (cur-


rency) for every comt that i8 held; the other officers
have no salary, but their ernolul11ents arise from fees.-
S Rep. Qd series, W. 1. C. p. 6.


Grand Court.


The magistrates who act as jndges in this court, are
appointed annually to the number of seven; but three are
held suflicient to form a court. They are chosen from
al110ng those inhabitants considered best qualified to fill
the situation, and their services are gratuitous. They sit
three times a year, in the town of Belize, taking cog-
nizance as a comt of criminal jurisdiction 01' all offences
not specified in the commission constituting the Suprel11e
Co~rt, with the exception of minor assaults, which are
tried in the summary courts; and, as a court of civil ju-
l'isdiction, "of all matters of debt aboye the sum of ±:1O,
trespasses, actions fol' damages, &c."


The proceedings of this court, on its criminal side, are
similar to those in the Supreme Coml11ission Court, with
the exception that there is no grand jury, though there is a
petty jury. Its judgments have hitherto been final, but
the prisoner is not debarred the privilege of appeal to Bis
Majesty's Superíntendant. It secms not to be the prac-


¡


t :.
(. '




334 HONDURAS.
tice, except in particular cases, to aUow their expenses to
prosecutors 01' witnesses.


As a court of civil judicature, the magistrates sit three
times ayear, taking cognizanee, as has been already sta-
ted, " oí aH matters of debt aboye the sum oí .f:1O, tres-
passes, aetions for damages, &c."


lt also tries titles to land (4) by writs of replevin. Ae-
tions, however, for the recovery of debts, are the most
prevalent; and debts by speeialty and on simple contraet
are proved in the usual way.-3 Rep. 2d series, W. l.
C.7.


AH cases are decided by juries, the jurors being chosen
from the white p,opulation, British subjects, and domici-
Hated in tbe settlement.


N o arrest before judgment is permitted here.
Tbe awarding the costs in civil actions is considered to


be the pl'ovince oí tbe jury, who "usually express the
same in their verdict."
. Costs, it is said, are limited by the Iaw of the settIe-


mento
The court considers itself entitled to grant equitable


relief against the strict rules of law, when a case is made
out for the exercise of such power. .


Five hundred pounds is the lowest sum in dispute for
which appeals to tIte King in Council are held allowable,
aecording to tIte general tenor of His Majesty's instrue-
tions,in tItis respect, to tIte Governors of his several
eolonies.


There is no regulation in this settlement in the nature
of an lnsolvent Act, nor is there any time prescribed for
the diseharge of prisoners whose debts are under .f:lOO.-
3 Rep. 2d series, 'V. l. C. 8.


Summary Court.


One of the magistrates of the settlement acts as judge
of this court, and sits once a month in the town of Belize,
to dispose of actions where the sum in dispute is under
.f:1O, in which case a jury of tluee is impannelled. The
same judge also disposes of assaults and minor offenees,


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


(4) Possessory titles only. Scc ante, 327, :l;)(l.




HONDURAS. 335
when the jury must be composed of twelve. persons.-3
Rep. 2d series, "VV. 1. C. 9.


Free Coloured Persons.
The only disabilities experienced by this class of the


inhabitants of Honduras is that they are not considel'ed
eligible to fill the oflice of magistrate 01' juror. The mode
of proceediog agaiost them in the criminal court is pre-
cisely similar to that adopted in the case of other free
persons.


N o commixture of the blood of whites with that of co-
loured persons is considered here, as it is to a certain ex-
tent in .Jamaica, to give a title to freedom.-3 Rep. 2d
series, ·W. 1. C. 11.


Magistrales.
The magistrates of this settlement are annually elected,


to thc number of seven, at public mcetings of the inhabi-
tants themselves, and their services are gratuitous. Their
elcction is subject to tbe approval of tbe Supcrintcndant,
who would remove them in the event of misconduct.-3
Rep. 2d series, W. I. C. 11.


Provost Marsltal and Gaol.
The provost marshal of this settlement holds his ap-


pointment under a commission from the Superintendant,
who would remove him in the case of neglect of duty 01'
misconduct.-3 Rep. 2d series, W. l. C. 11.


Clerk of tite Suprerne and Lower Courts, and Keeper
of tite Records.


These oflices are executed by the same individual, in
conjunction with an assistant; both of them are appointed
by the Superintendant at the recommendation of the ma-
gistrates.


Before registering a deed 01' will, proof is required of
the signature, cither of the person who has executed the
same, 01' of the subscribing witoess 01' witnesses thereto,
and ¡¡fter rcgistry the original instrument is returned, on
application to the party who had lodged it.


,


11




336 HONDURAS.
N o wills, it is stated, are received for record' until afte,r


the death of the testator.-3 Rep. ~d series, W. J. C. 1~,
13.


Coroner.
By the custom of this settlement the junior magistrate,


01', in his absence, nnother of the magistrates, performs
the duty of coronel'. His services are gratuitous. The
formalities usual in England seemedto be observed on
the proceedings on inquests here, and the coronel' is
vested with the powers of the same oflicer in England, in
regard to summoning witnesses, committing if necessary,
and the like. No new regulations on this head appear to
be required.-3 Rep. 2d series, W. I. C. 13.


Notary.


There is a notary in thc settlemcnt, whose appointment
is derived from the Prerogative Court of Canterbury. In
the event of his death or absence, protests are made be-
fore the magistrates, and if extended, are signed by three
of the same functionaries, and a certificate from the Super-
Íntendant is annexed.-3 Rep. ~d series, W. 1 C. 13.


Police Ojjicer.
This oflicer is appointed and removable by the Superin-


tendant, with a salary of t:60 and eertain fees. In addi-
tion to the funetions usually preseribed to su eh an oflieer,
he has eharge of the prisoners confined in the gaol, and
superintends 'aH punishments and earries into execution
all sentenees of the Criminal Court, exeept those de eree-
ing death.


He also exeeutes all thc oflieial orders of the Superin-
tendant and the magistrates.-3 Rep. 2d series, W. 1. C.
13.


Arbitrations.
Arbitrations appear to be frequently resorted to in this


settlement; the arbitrators being appointed by the court
and their award being entered up as its judgment, which
is then enforeeable by writ of execution.-3 Rcp. ~d se-
ries, 'W. l. C. 13.




HbNDUR.\S.


Appeals.
No appeal willlie to the King in Council from the judg~


ment of any of the courts for a less sum than ~500 sterl~
ing, in the computation of which sum costs are not.
included. Only one instance of such appeal, it appears,
has ever been known here, and in that case" it was never
decided upon."


The commissioners say they could not collect with cer~
tainty whether any intermediate appea), or for what sum,
would lie to the Superintendant.-3 Rep.2d series, 'V. 1.
C.14.


1>





( 338 )


JAMAICA.
--


JAMAICA, which, according to Mr. Bryan Edwards, (1)
"since the 1088 of America, has always been jU8tly
reckoned the colonial gem of the British Crown," now de-
mands our attention. It was discovered by Columbus
upon his second voyage, on the 3d of May, in the year
1494, when coasting round Cuba with a view to discover
whether that place was an island or a part of the main-
land. (Q) The name is said to be Indian, and to signifya
country abounding in springs.


Jamaica is situated in the Atlantic Ocean in about 18"
lQ' north latitude, and in longitude about 76° 47' west
from London. (3) The north and south sides of the island
are separated by a chain of mountains extending from
east to west. Its chief natural productions are sugar,
indigo, cofiee, and cotton; but it producfls many other
valuable commodities in sufficient abundance. It is 150
miles in length, and, on a medium of three measurements
at different places, about forty miles in hreadth. Accord-
ing to MI'. Edwards's statement ] ,740,000 acres werc cul-
tivated, and, including the superfices of the mountains, it
was supposed to contain altogether about 4<,000,000 of
acres. (4)


The island of Jamaica is divided into three counties,
named Middlesex, Surry, and Cornwall. The first is com-
posed of eight parishes, one tOWR and thirteen villages. The
town is that of Sto Jago de la Vega or Spanish Town, the
capital of the island. It is situated on the banks of the
Cobre, about six miles from the sea. The Governor has a
handsome place in the town, and the House of Assembly
and the Courts of J ustice are aho held in it. The county
of Surry contains seven parishes, two towns and eight vil-
lages. The towns are Kingston and Port Royal. The


(1) 4 B. Edw. 249.
(2) 1 B. Edw. 152 153.


(3) 1 B. Edw. 193, 197, and the
authorities there referred too


(4) 1 B. Edw. 237 to 260.




JAMAICA. 339
former was founded in 1693. Cornwall contains five
parishes, three towns and six villages. The towns are
Savanna le Mar, Montego Bay, and Falmouth.


HISTORY AND CONSTITUTION.


Columbus took possession of the island on the 4,th of
May, 1494. N early nine years afterwal'ds, on the 24th of
June, 1503, he was shipwl'ecked on this island in a place
called to this day Don Chl'istopher's Cove. He remained
on the island aboye twelve months. When, after the death
of Columbus, the claims of his son were tardily recúg-
nized by an ungrateful sovereign, Don Diego Columbus set
out for his government of Hispaniola, to which Jamaica
was then attached, and he appointed as his deputy in Ja-
maica Juan de Esquivel, who, as he was the first, so he
seems to have been the best Spanish Governol' of the
island. This governor founded a city, which he called
Nueva Sevilla, and which appears to have been destroyed
or deserted about the year 1525. Another city was then
founded by Don Diego Columbus, who gave it the name
of Sto Jago de la Vega, a name that about twenty years
afterwards was adopted as the title for a marquisate for
his eldest son and heir, as one of the terms on which that
noble person surrendered to the Empel'or Charles V. the
almost regal privileges which had been in form conferred
upon Christopher Columbus, but which, though not capa-
ble of being legally disputed by the Spanish monarchs,
had been shamefully usurped for the advantage of their
favourites. The city is now called Spanish Town and is
the capital of the island. The Spaniards do not appear
to have successfully developed the resources of the island,
for we are informed that at the time of its capture, in
May, 1655, by the English force s sent out by Cromwell,
there were only about 1500 inhabitants, including women
and children; that many of the valuable commodities
which Jamaica has since produced in such great abun-
dance, were either altogether unknown, 01' very scantily
cultivated; and that the principal export, besides cacao,
consisted of hogs' lard and hides. For some time aftel' the
capture of the island the English remained under milital'y
jurisdiction. A most interesting account of the condition
of the island, and of the effol'ts made to settle and im-
prove it by the Protector, is to be found in the admirable


z 2




340 JAMAICA.
work of Mr. Edwards, who gives to that able ruler the
honour of obtaining and securing this valuable and im- .
portant possession, and to Colonel D'Oyley the credit of
having zealously aud nobly seconded his efforts. Imme-
diately aner the restoration, Charles Z, confil'med Colonel
D'Oyley in the command by a commission which bore date
the 13th February, 1661. The commission directed him
to erect Courts of Judicature, and, with the advice of a
council to be elected by tbe inhabitants, to pass laws
suitable to the exigencies of the colony. Lord Windsor
was afterwards appointed Governor, and carried over a
proc1amation containing a dec1aration by the Crown that
all free born subjects in Jamaica should, from their re-
spective births, be reputed to be free born denizens of
EngIand. By the treaty of lmO, the island of Jamaica was
formally ceded by Spain to England, "together with all
lands, countries, islands, colonies, and dominions what-
ever, situated in the "Vest Indies 01' any part of America,
which the King of Great Britain and his subjects did then
huId and possess." In 1678 an attempt was made by
Charles to govel'l1 this island by laws passed in the Privy
CounciJ. The scheme is described by Mr. Edwards (5)
in the following words,-" A body of laws was prepared
by the Privy Council of EngIand, among the rest a bill
for settling a perpetual revenue on the Crown, which the
Earl of Carlisle was directed to off el' to the Assembly, re-
quiring them to adopt the whole code without amendment
01' alteration. In future the heads of all bills (except
money bilIs) were to be suggested, in the first instance, by
the Govel'l1or and Council, and transmitted to His Ma-
jesty to be approved 01' rejected at home; on obtaining
the royal confirmation, they were to be returned under
the great seal in the shape of laws, and passed by the
General Assembly, which was to be convened for no other
purpose than that, and voting the usual supplies; unless in
consequence of special orders from England." The suc-
cess of the experiment 'upon Barbados (6) had probably sti-
mulated the King and his ministers to this attempt, which
in grossness, indeed, exceeded the former. The people of
Jamaica, however, possessed three advantages over their
brother colonists of Barbados; they had an existing As-


(s) 1 B. Edw. 221. (6) Scc ante, 178.




JAMAICA. 341
sembly lawfulIy established,-their titles to their lands
could not be impeached undel' a fraudulent grant to a
court favourite,-and there had been a degree of re-action
in the minds of the English people, who were no longer
so eager to please royalty at the expense of all that was
just 01' honest, as they had been when Charles first re-
turned among them. Thus assisted by circumstances the
colonists were successful in their resistance. The great
object in view was to obtain from Jamaica the settlement
of a perpetual l'evenue, and this object was adopted by all
the successive ministries from the time of Charles 2. to
that of Geo. 1, and was constantly, but vainly, endea-
voured to be enforced. At length, in 17528, a compro-
mise was effected. The Assembly consented, upon cer-
tain conditions, to settle on the Crown a standing irrevo-
cable revenue of .1'8000 ayear. The first of these condi-
tions was that the quit-rents arising within the island (then
estimated at .i'1460 per annum) should constitute a part
of such l'evenue. The second and third conditions were
of more importance. In order to compel submission to
their will the different ministries had recommendecl the
Crown to suspencl from time to time the confirmation of
the lawso passed by the Assembly, and it was also left
in doubt whether any and what part of the common and
statute law of England was in force in the colony. It was
therefore stipulatecl, 52dly, that the body of theil' laws
should receive the Royal Assent, and 3dly, that "all such
laws and statutes of EngIand as had been at any time
esteemed, introduced, used, accepted, 01' received as Iaws
in this island, should be and continue the laws of Jamaica
for ever." The conditions were agreed to, and the Re-
venue Act of Jamaica was passed.


Each parish, 01' precinct, consisting of an union of two
01' more parishes, is governed by a chief magistrate, styled
Custos Rotulorum, and a body of justices unIimited by
law as to number.


The ves tries are composed of the custos and two other
magistrates, the rector and ten vestrymen. The latter are
elected annually by the freeholders.


The legisIatul'e of Jamaica is composed of the Captain-
General or Commander-in-Chief, of a Couneil nominated
by the Crown, eonsisting of twelve gentlemen, and a House
of Assembly, containing forty-three members, who are
eleeted by the freeholders, °namely, three for the several




342 JAMAICA.
towns and pllrishes of Sto Jago de la Vega, Kingston, and
Port Royal, and two for each of the other parishes. The
qualification required in the elector is a freehold of 1'10
per annum in the parish where the election is made; and
in the representative a landed freehold of 1'300 per an-
num in any part of the islaud, or a personal estate of
1'3000.


The Governor receives 1:2500 per annum out of the
1'8000 fundo A further salary of 1:2500 is settled upon
him during his residence in the island, by special act of
the legislature passed at the beginning of his administra-
tion, and is made payable out of some of the annual funds
provided by the Assembly. _


"tu c",,,ta:'u ",m",,,s,,,uüelO, the c()n\mand.e'C-~n-cb.~e\:, v¡~tb.
the advice and consent of a general council of war, (in
which the members of the Assembly have voices,) may
procIaim martiallaw. His power is then dictatorial, and
all persons are subject to the articIes of war. (7)


COURTS IN GENERAL, AND THE LAWS THEREIN.


The courts established in this colony for the adminis-
tration of criminal and civil justice, are the High Comt of
Chancery, the Courts of Appeal and Error, the Supreme
Court of Judicature, the Comt of Assize, Oyer and Ter-
miner and Gaol Delivery for the counties of Surry and
Cornwall, the Court of Ordinary, the Court of Vice-
Admiralty, the Vice-Admiralty Sessions, a Court of
Quarter Sessions, a Comt of Common Pleas in each Pa-
rish (except the parish of St. Catherine), and a.comt for
the trial of Maroons, and a Slave Court in each parish.


LAWS. (8)
By the Colonial Act 1 Geo. 2, C. 1, all such laws and


(7) The facte stated in the ahove
aceount are taken from differem parts
of Mr. Edwards's History, vol. i. pp.
201 to 236, and 260 to ~85. See also
1 Rep. W_ I. C.!ji series, p. 6 to 10, for
a sketch of the constitution of Jamaica.


(6) Sec ante, p. 3 to 16, on the
general topie how far the colonies are


subject to the law of the mother
couutry.


1t may here be mentioned, that in
the extrae!s from the Commissioners'
Report on this Colouy, whellever the
word "acts" OCCUf, unless otherwise
expressed, Colonial Acts are meau!.


Whenever the word " pounds " oc-




JAMAICA. 343
statutes of England as had theretofore been acted upon
in Jamaica, are made perpetual; and it may be stated
generally, that the statute law of England (not being at
variance with the acts of the colony) is acted upon in most
cases of manifest convenience, as in the execution of wills,
limitation of actions, &c. But British sta tutes passed
since the 1 Geo. 2, are not in force, unless extended by
express terms to the colon y, "01' unless," added the At-
torney-General, "they relate to trade and navigation, 01'
to the law-merchant, 01' are in aid, 01' are amendments of
the common law."


The common law of England prevails as far as local
circumstances permit, and when it is not at variance with
the Colonial Acts.


COLLECTION OF LA WS.


The public acts are printed by commissioners appointed
by the legislature. They are complete to the close of the
session of 1825. Private acts remain in manuscript.


The originals or manuscripts of all acts, public 01' pri-
vate, are deposited and -recorded in the secretary's office,
where they may be consulted 01' transcripts obtained on
payment of the island secretary's fees, as regulated by the
56th Geo. 3, c. 19, and the 6th Geo. 3, c. 23.


Copies of the acts are sent to His Majesty's Secretary
of State for the Colonial Department, and to the clerk of
the Privy Council.-l Rep. 2d series W. l. C. 44.


Governor.


To an inquil'Y whether the Governor had the power
of committing and continuing persons in prison, and de-
laying their trial, the commissioners were told he had not,
" except," said the chief justice, "in the case of aliens,


curs, it is lo be understood, unless
otherwise expresscd, as mealling
"pounds currency of Jamaica." The
proportion belween tbal currency and
the cnrrency of England is as follows :
viz • .E1-10 of Jamaica currellcy is, in
orrlinary calculation, equal to .Ll00
sterlillg; and consequently .El cur-
rency represenls aboul 14s. 3d. ster-


ling ;-bllt in large transactions the
course of exchange varies, and is re-
gulated by Ihe currenl premium or
discount 011 hills drawII on Great Bri-
tain, a variation, which, cntirely inde-
pendent and exclusive of the ordi-
nary exchange abo ve mentioned, has
extended, at different periods, lo np-
wards of 30 per cent.




344 JAMAICA.
whom he may, under the provisions of the Alíen Act, 5
Geo. 4, c. 18, commit to prison and send offthe island."


He has no power in civil cases of staying execution or
suspending proeeedings j ~ut in ~riminal cases he can par-
don, murder and high treason only exeepted. In these he
may stay execution till the King's flleasure be kilOwn.
And Mr. Burge (the Attorney-General) remarked that, in
criminal proeeedings, as representative of the King, he
may direct the Attorney-General to entet' a nolle prosequi,
or, by virtue of His Majesty's prerogative, might respite
the execution of any sentence.


Particular Laws of tite Colony.
The writ of Habeas Corpus is issued by the chancellor


or judges of the Supreme Court in term time j and by the
chancellor and a single judge of the Supreme Court in
vacation. The proceedings are similar, and the writ is
granted under the same circumstances as· in England,
" excepting" (the chief justice said) " in the case of a per-
son committed under the Alien Act, who must in the -6rst
instan ce appeal for l'edress to the Governor in Council,
and cannot apply for a habeas corpus, unless the appeal
remain unheard for fourteen days."


The law of descent and the law governing the distribu-
tion of personal property, in cases of intestacy, do not
differ from the law of England on those subjects.


Lands in the hands of the heir 01' devisee are assets,
said the Attorney-General, for the payment of all classes
of debts owing by the al1cestor or testator, by means of a
suit in the Court of Chancery 011 behalf of his creditors.
And the chief justice stated, that they stand charged with
speeialty and also simple contraet debts, when the latter
have been put on judgment and notice of a writ of extent
has been served pursuant to the 524th Geo. 52, c. 19.


He also referred to the (British) statute 5 Geo. 52, c. 7,
by which lands in the colonies are made liable to satisfy
all debts.


Personal assets, unless specially exempted, are always
applied in the -6rst instance in exoneration of the real
esta te j and in marshalling assets, slaves are considered
and dealt with as personalty, next after the assets purely
personal have been exhausted.




JAMAICA. 345


Foreign Judgments.


A judgment recovered in England, 01' elsewhere, by de-
fauIt, 01' in contradictorio, against a person resident in
tbe colony, would be considered merely as evidence of
tbe plaintiff's demand, and tbe chief justice believed tbat
a foreign judgment " has always been received as evidence
in the colony, without going into the merits on which it
was pronounced." The onus of impeaching the judgment,
said the Attorney-General, would devolve on the de-
fendant.


There is no judgment of outIawry in this colony.
The foreign appointment of guardians to minors, and


committees 01' curators to idiots 01' lunatics, would not give
any control ayer property in the colony.


The Colonial Court of Chancery would exercise original
jurisdiction in such cases; but examinants conceived, that
from comity 01' curtesy, it would (in the absence of any
other claim, said the chief justice,) confirm such appoint-
ment, and conform its orders to tbose of the Court of
Chancery in England.


The chief justice apprehended that the disability at-
tached to an idiot 01' lunatic, by virtue of tbe foreign
appointment, would cease on his coming to reside in the
colony, and that such foreign proceedings would be
merely considered by the colonial court as evidence tend-
ing to invalidate his acts.-l Rep. 2d series, W. l. C. 45.


And the Attorney-General remarked, tbat the Colonial
Court of Chancery would revoke such appointment, when
it was made to appear that such disability had ceased.


Bankruptcy.


With respect to the force of an assignment and certifi-
cate, un del' an English 01' foreign commission of bank-
ruptcy, the chief justice declared that the colonial courts
would give no effect to them against a creditor not claiming
under the commission j but would, he apprehended, pre-
vent a creditor clai.g under it from pursuing the bank-
rupt personalIy.


On this subject the Attorney-General particularly re-
ferred to the judgment of MI'. Henry, when chief justice




346 JAMAICA.


of Demerara, in the case of Odwin v. Porbes (confirmed
on appeal in the Cockpit), and remarked that the late
chief justice of Jamaica had entirely adopted that au-
thority, and held that the defendant's English certifica te
barred the plaintiff from recovering a debt owing to him
in respect of a consignment made by him to the defend-
ant resident in England; and added, "1 take it now to be
the law of this country that a similar effect would be given
to a certificate when the debt was contracted in Eng-
land."


And as to the force of the assignment, it was his opinion
that " the title of the assignees would not be recognized
with referencc to the bankrupt laws; and their right to
possess the property assigned to them would depend on
the validity of the instrument assigning or conveying it,
and not on any title under the bankrupt laws." From
inquiry respecting the preference of claims between fo-
reign and colonial creditors, (the latter havíng notice of
the bankruptcy abroad,) the chief justice made this dis-
tinction,-that supposing the bankrupt to have been
formerly in the island, but to be absent and unrepresented
by attorney, the colonial creditors would, he conceived, as
to personal property, obtain a preference by attachment
under 23 Caro 2, C. 23; but if the bankrupt were resident
in the island, or represented there, the same preference
might be obtained, both as to the personaland real pro-
perty, by putting the demand in suit.


After assignment under the foreign commission, the
bankrupt would (according to the chief justice) be allow-
ed to sue in the colony in respeet of such property.


And supposing the assignees to be in possession of the
bankrupt's property and his outstanding debts in the
colony, by permission of the colonial court, under the
foreign assignment, he appreh~nded that the foreign eer-
tificate would be no bar to the suit of any colonial ereditor
desirous of proceeding personally against thc bankrupt
(then in the colony) for debts proveable, but not proved
under the foreign commission.


The chief justice eonsidered that the notice of an in-
solvent debtor that he intended to take the benefit of the
Insolvent Act was not sufficient for the protection of foreign
creditors.


There is no law of the colony similar to the aet 21
James 1, which makes personal property, left in the pos-




JAMAICA. 347
session and apparent ownership of a commercial person or
trader, (not the real owner,) liable to the creditor of such
person, in case of insolvency; neither is the aboye statute
ever acted upon in the colony.


Jl;Jarriage and Dower.
A marricd woman is entitled to dower as in England,


and to a similar provision (subject to her husband's debts)
out of the sIave property undisposed of in his lifetime;
also to the provisions of the sta tute of distribution.


To the fol1owing question " What would be the effect of
a marriage celebrated abroad, according to the law of the
country where the same was had, between persons of real
property in the colony, in regard to such property, in
cases in which the law of the two place s differs as to the
effect of marriage on such property?" the chief justice
replied, that the law of the colony would prevail.


In the case of the separate trading of a married woman
in the colony, it was believed that the decision of the court
would be governed by the common law of England.


In the case of a marriage celebrated abroad, where a
law prevails which legitimates children born before mar-
riage, such children would in this colony be considered
illegitimate.


There is no jurisdiction in this colony competent to
pronounce any sentence ol' divorce; and there is a positive
instruction to the Governor to withhold his assent to any
act of the legislature dissolving a marriage.-l Rep. W.
l. C. 2d series, 46.


Aliens.


Aliens can maintain personal actions; they cannot hold
real estátes, but they may lend money on mortgage under
13 Geo. 3, c. 10. That act provides that on failure of
payment the legal estate shan be vested in certain public
officers, in trust for the alien, and that he may sue in their
names.


Aliens may acquire the rights of British subjects by
complying with the terms of the British statutes for the
naturalization of foreign Protestants and others, but they
are generalIy acquired by letters of naturalization from the
Governor, under the provisions oC the S5 Charles 2, c. 3.




348 BMAICA.


Witls.
The statute of frauds extends to this colony, and a will


devising real estates or slaves in the colon y must be
executed according to the manner prescribed by that sta-
tute, and its formalities would, the chief justice conceiv!!d,
be requisite in whatever country the will might be exe-
cuted.


In the case of a will made in the colony, and bequeath-
ing personal property, the forms are tbe same as in Eng-
land; but he apprehended that personal property in the
island would pass under a will executed in a foreign
country according to the laws of that country.


Mortgages. - Registry.
Mortgages in this island are conventional. The estate


is generally conveyed in fee to the mortgagee, amI the re-
quisite forms amI solemnities are the same as in England.


lt is necessary to the validity of a deed that it be re-
corded in the secretary's office, and, as between the ven-
dor or mortgagor and the vendee or mortgagee, it may be
recorded at any time, and has, when recorded, l'elation
back to its date; but as between the vendee or mortga-
gee, and subsequent purchasers or incumbrancers, it must
be recorded within the time limited by law, (viz. ninety
days,) otherwise he willlose his priority over them, if they
have recorded their deeds within the limited time.-See
acts 33 Caro 2, C. 12, 4 Geo. ~, C. 5, and the 16 Geo. 2,
c. 5. It is not necessary to the validity of a will that it
should be recorded, but the practice is to record it like a
deed.


The chief justice was of opinion that neither actual
nor constructive notice of a deed to a party claiming under
an adverse title, would dispense with the necessity of a
registry.


No court in this colony has, it appears, jurisdiction in
any case, criminal 01' civil, to issue process of outlawry.
-1 Rep. W. l. C. 2d series, 47, 48.


Statutes qf Limitations.
The British statutes 31 Eliz. C. 5, s. 5, applying to penal




JAMAICA. 349
Ilctions, and the 21 James 1, c. 16, and 4 Anne, c. 16, s. 19,
respecting civil actions, extend to this colon y . The island
acts 10 Anne, c. 12, and 29 Geo. 3, c. 13, s. 4, declare
bonds, judgments, bills, mortgages, or other writings ob-
ligatory, to be void, if no payment has been made, 01' if
not demanded within twenty years from the time they be-
carne due, 01' from the last day of payment. There is a
saving for infants and persons under coverture or of un-
sound memory, who must bring their action within three
years arter the disability removed.


Arrest lor Debt.
A defendant may, in general, be arrested on mesne


process, in all actions upon civil contract or in tort, unless
coming within the privileges of the Island Act, 35 Caro 2,
C. 7. An 'affidavit múst be made of the cause of action,
and where the damages are uncertain, an order of the
court or of a judge must be obtained as in England.


Special bail is required in aH cases of arrest on mesne
process.


The exemptions from arrest on mesne process are mem-
bers of the legislature, persons possessing a freehold of
five acres planted, 01' a house worth .i' 10 per annum, and
generally such as are exempted by the law of England.-
See the aboye act 35th Cal'. 2.-1 Rep. 2d series, W. 1.
C.48.


Notice of Proceedings.
No proceedings can be founded in the colonial courts


upon process issued by them but served upon the party
out of the colony.


With respect to proceedings against persons residing
abroad, having property in the colony, it seems that if
they have never be en in the island, and are unrepresented,
there is no remedy against them: and if having been once
in the island they have left it, and are unrepresented, the
only mode of proceeding is by foreign attachment under
the.33d Cal'. 52, c. 523.


Counsel.
To the commissioners' inquiries respecting the qualifi-


cation and admission of counsel to practise at the bar in




350 JAMAICA.
Jamaica, the chief justice gave as his opinion "that per-
sons acting as counsel here .must have been pl'eviously
called to the bar in England."


An Ol'del' to sue in forma plluperis may be obtainnd
undel' the same circumstances and by the same mode of
application as in England.-l Rep. W. I. C. Qd series,
49.


Supreme Court 01 Judicature.


This court was established under the royal instructions
in the reign of Charles 2, and more completely secured in
its present jurisdiction by an act of the legislature of the
colony, 33 Cal'. :2, c. :23, s. 1.


Three judges are necessary to form a court. The
chief justice is appointed by the Gov'ernor and confirmed
by the King, and the other judges are appointed by the
Governor. 'rhey all hold their offices during His Ma-
jesty's pleasure, but by the second clause of an act of the
island, :21 Geo. 3, C. :25, and 57 Geo. 3, c. 17, may be
suspended by the Governor (01' person exel'cising the
functions of governor) with the advice and consent of a
majority of the council.


'rhe chief justice's emoluments are fixed by the acts of
1 Geo. :2, C. 1, 43 Geo. 3, C. ~5, 47 Geo. 3, C. 13, and 58
Geo. 3, c. 18; and those of the present chief justice
amount to f:5720 currency pel' annum.


The Attorney-General says the present chief justice's
salary is f:5600 currency, besides 1'lQO currency from
His Majesty's appropriated revenue, and that the salary
of f:5600 is given in lieu of all fees, perquisites, and
emoluments.


Of the other three judges the two seniors alone derive
any benefit from theil' offices. They each receive salaries
of f:700 per annum curl'cncy, undel' 51 Geo. 3, c. 27, and
the two seniol's of the Assize Coul'ts f:300 cul'rency pel'
annum each, undel' the same acto


Since the yeal' 1803, the person appointed chief justice
has been a barristel'. Fl'om the summary of legislative
provisíons given by the Attorney-General, it does not ap-
peal' essential to the appointment of chief justice with a
salary of 1'4000 pel' annum, that he should be a barrister,
though he must be such to be entitled to the additional
salal'Y of .i'1600 currency.




JAMAICA. 351
The assistant judges are generaHy appointed from thé


resident gentlemen of the island, aml it is not required
that they should have gone through a COUl'se of legal
study.


By the (Colonial) Act of 33 Cal'. 2, c. 23, the court has
cognizance of aH pIeas, civil, criminal, and mixed, as fully
as the Courts of King's Bench, Common Pleas, and Ex-
chequer in England.


The same judges preside whether the court sits undel'
its criminal, civil, 01' revenue jurisdiction.-l Rep. W. I.
C. Zd series, 50.


Criminal Jurisdiction and Practice of the Supreme Court
of Judicature and Courts of Assize.


The chief justice presides at each of these courts, and
is assistcd by two assistant judges.


The chief justice says these courts have the same
power as the Courts of Assize, Nisi Prius, Oyer and Ter-
miner, and Gaol Delivery in England, and their sittings
cannot be continued longer than three weeks, hut are ge-
nerally closeel in eigbt 01' ten days.


The judgments anel proceeelings of these assize courts,
as courts of oyer and terminer anel gaol delivery, are
stated by the Attorney-General to be "inelependent of,
anel not under the control of the Supreme t;ourt of J udi-
cature."


The officers attending the Supreme Court on the cri-
minal ¡ide are the Attorney-General, Provost Marshal,
Clerk of the Court, anel Clerk of the Crown.


In the Assize Courts the deputies of these officers
attend, except in the Assize Court of Surry, at which the
Attorney-General anel Clerk of the Crown attenel .


.. The court," saiel the chief justice, "Ras the power in
cases of aggravated miselemeanor, immeeliatelyaffecting
the administration of justice, 01' the peace and happiness
of society, to make orders fol' the filing of criminal in-
formations;" but this power (he adds) is seldom exercised.
And the Attorney-General of this island has the same
ex oJjicio authority as the Attorney-Genel'al possesses in
England.


'rhe fmm of prosecution and the proceedings before
triaI, as respects the warrant, examinations, baH, commit-
ment, &c. are the same as in England.




352 JAMAICA.
N o fees are paid for preparing indictments for capital


offences, or for offences which the Attorney.General
prefers without the intervention of a prívate prosecutor.


A grand jury is impannelled at each of the sittings of
the Supreme Court of Judicature and Assize Court. Its
duties, &c. are the same as those of a grand jury in Eng-
land.


The defendant's counsel is allowed to make a full de-
fence for his client, by observations on the evidence.


Púsoners are never detained after acquittal for payment
of fees, and none are payable to thé law officers of the
Crown.-l Rep. 2d series, W. 1. C. 51, 52.


Civil Jurisdiction and Practice of (he Supreme COllrt of
Judicature and COllrts of Assize.


This court has jurisdiction, says the Attorney-General,
of all civil actions of which the Court of eommon PIe as in
England has cognizance, whether real, mixed, 01' per-
sonal; but no writ of right 01' other real action, except
that of partition and dower, is sustainable in this court.


Assurances by fine or recovery are not known in the
eolony; but there are conveyances of a certain description
that have the same effect.


The action of ejectment is also the only one resorted to
fol' the trial of title to lands.


The pl'actice and rules of pleading are the same as in
England, said the Attorney-General; dilatoryand sham
pleas are allowed, but he added that the latter are not fre-
quently resorted to; and the chief justice l'emarked that
a plea obviously dilatol'Y would be set asid e with costs.


Under the Island Act, 38 Geo. 3, c. 2S, s. S, the court,
01" a judge in vacation, may issue a eommission de bene
esse to take the examination of a witness about to leave
the island, or unable to attend the trial through age,
sickness, 01' infil'mity.-l Rep. Zd series, W. 1. C. M~, 5S.


The court also, undel' an authol'ity which it has as-
sumed, will issue a fol'eign commission where the witness
is abroad, on a eommon motion, at the instance of plaintiff;
but if applied for by defendant, an affidavit is required
showing the materiality of the testimony, and that it can-
not be supplied by any evidence in the island.


Debts by specialty 01' simple contract, where the cre-




JAMAICA.


ditor resides in EngIand, are proved by affidavit under
the city seaI, unuer the British Act, 5 Geo. Q, c. 7.


To an inquil'y ii'om the commissioners respecting the
jurisdiction of this court, without the intervention of a
jury, the chief justice stated, that it p<Jssessed the same
summary jul'isdiction over its officers, and over all pel'sons
fol' contempt, which is exercisecl by the courts in EngIand ;
and should an officer l'eceive money under its process, and
fl'audulently withhold it, or neglect to receive it, or to en-
force payment when he ought to have done so, the court
will, without the intervention of a jury, fix him with the
amount, and order him to pay it over to the party entitled
to it.-l Rep. W. l. C. Qd series, 54.


No writ of error can be brought on any order made by
the court in the exercise of its summary jurisdiction.


In case, said the Attorney-General, the subject be ag~
grieved, and can sustain so expensive a proceeding, the
only mode of obtaining redress would be by appeaI to the
King in Council.


The writ called the writ of execution is not an effective
writ, but is required to be lodged, for the purpose of ren~
dering the judgment a lien on the sIaves of the defendant.


The writ of venditioni is the effective writ for Ievying on
the goods and person of the defendant. I t unites the form
and efficacy of the writs ofjierijacias and capias adsatis ..
jaciendum. Thus, upon a judgment taken as of June
Grand Court, a writ of execution is Iodged, returnabIe the
first day ofthe succeeding October court, and immediately
after, the pIaintifl' may issue his writ venditioni exponas.
In judgment of ejectment the writ of possession does not
issue till twenty days after the judgment has been oh-
tained.-l Rep. W.1. C. Qd series, 55.


In order to give a judgment a priol'ity, it is necessary
that an execution should be Iodged. A subsequent judg-
ment on which a writ of execution was Iodged would have
priority over a judgment previously obtained, if there had
not been an execution lodged on that judgment.


If the nominal writ of execution be not lodged within a
year, the judgment must be revived with scirefacias, the
praceedings on which are the same as in EngIand.


Exeéutions are taken out and suspended and used as
securities.


A judgment is assignabIe, and after execution lodged
becames a security upon sIaves.


AA


-'.




354 .JAMAICA.
,An equity of redemption is not liable to be sold under


an execution issued under a judgment at law.-l Rep. W.
r. C. 2d series, 56, 57.


Revenue Jurisdiction of the Supreme Court.
Thiil court derives its authority as a Court of Exehe-


,!uer under the aet of the island, 33 Cal'. 2, c. 23, s. 1,
before referred to, whieh established the Supreme Court.


A defendant may be arrested and held to bail in this
court, in like manner as if he were sued by a private indi-
vidual.


This court has jurisdiction as a Court of Escheat by
virtue of the island act, 33 Caro 2, C. 22, S. 2. The juris-
dictíon of this court, in cases of escheat and forfeiture, is
incident to its general authority as a Court of Revenue.


As a Court of Escheat it entertains jurisdiction in cases
in wbich real (01' personal estates, said tbe solicitor of the
Crown,) or slaves, is or are claimed as belonging to tbe
Crown, in consequence of the former proprietor having
died without leaving heir8 heritable, and in cases of lands
forfeited for non-payment of quit-rents.


When property has become escheatable to the Crown
any individual may petition the Governor for lettere of
pl'cference.


If during tbe twelve months after office found there
appears no claimant, judgment passes for the Crown. ,


The Governor grants tbe letter8 of preference to such
of the illegitimate descendants as wouJd have sueceeded
by descent, if legitimate, except where the proprietor has
left án invalid testamentary disposition, in which case the
letters of preference are granted to the person 01' persons
whom the testator intended to take the property, and ex-
cept a]so, where in the first case the descendant is unab]e
to eultivate the property 01' to take eare of the slaves, and
in that event, letters of p1'eference are granted to some
friend 01' responsible person, upon the eondition of paying
the descendant a certain proportion of the apprai8ed value.
o¡ In 8ho1't," says, the Attorney-General, "in granting ]et-
ters of preference on escbeatcd property, every care i8
taken that the illegitimate descendants of the intestate
shall derive the fun benefit of the escheated property, 01'
oi' its value."


To the question, whether the Crown can attach debti




JAMAICA. 355
01' other dues owing to its accountants in the hands of
third persons in this colony? the chief justice l'eplied, " 1
am aware of no proceeding by which this can' be done.
The foreign attachment law of the island does not seem
to contemplate the case of the CJ'own;" but to the same
question the Attorney-General stated, that "by means of
the ¡sland foreign attachment law, 33 Cal'. 52, c. 523, s. 8, the
Crown, like any individual, may attach debts owing to its
debtors in the hands of third persons in the colony; but
the English process of extent in aid is not in force."-l
Rep. W. l. C. 52d. series, 57, 59.


Court of Error.
This court is established by His Majesty's instructions


to the Governor. Jt is composed of the Governor 01' per-
·son administering the government, and the members of
the council, who decide by a majority.


No person who sat as a member of the court beIow
when the judgment appealed from was pl'onounced, can
sit as a memher of this court; but the chief justice, if he
composed a part of the court pl'onouncing the judgment,
may, if he thinks propel', attend the conrt, and give the
reasons fol' the decision of the court beIow, but he cannot
vote.


Writs of error 01' appeaIs líe from the Supreme and
Assize Courts, in cases ",hcre the matter in di~pute ex-
ceeds .t300 sterling in vaIue, except in the case of a judg-
ment in ejectment, 01' where any tax, duty, 01' other right
of the Cl'own is involved, when the vaIue need not be
stated. The pIaintiff in error enters into a bond fol' .,€500
to prosecute, to obey the decision, and to pay such costs
as shaIl beawarded against him.-See His Majesty's
47th and 48th Instructions to the Governor of Jamaica,
1 Rep. W. 1. C. 52d series, 60. ,


Court of Cltancery.
The Governor, by virtue of the lettel's-patent appointing


him Governor, exel'cÍses the office of chancellol', and the
equity jUl'isdiction of this court is similar to and co-exten-
sive with that of the COUl't of Chancel'y in EngIand; but
this court has no jurisdiction in addition to its general equity


AA52




356 JAMAICA.
jurisdiction, except in cases subjected to it by prívate acts
ofthe legislature.


There is also a common law 01' petty bag side of the
office. .


The chancelIor's jurisdiction, in cases of idiotcy and lu-
na.cy, is derived from an expl'ess gl'ant in the letters-patent
appointing him Governol'.


This coul't has also jurisdiction in mattel's of dowel' and
pal'tition, and to stay waste by injunction.


1t also appoints gual'dians to infants. Those above
.. sixtcen name theil' own gual'dians, those undel' that age,


01' absent from the island, have, on petition, verified by
affidavit and signed by comlsel, a guardian appointed,
who gives bond to account, with snrety, before a master.


1t has also jurisdiction to decrec the sale of lands for
payment of judgmcnt debts, on a suit by a judgment cre-
ditor; but this proceeding is seldom l'esorted to, and only
in the cases of incumbered real estates, as the 1nsolvent
Debtors' Act and Extent Law ofthe island are, according
to the registrar, calculated to meet most cases, both during
the life ami after the death of the debtor.


The writ of ne exeat insula issues from the Comt of
Chancel'y in Jamaica, undel' the same circumstances as
the writ of ne exeat 1'egno does in England, and is in-
dorsed to the provost marshal to take bail, and the amount
ll1arked thereon.


The proceedings and practice in the equity side of the
comt are as analogous to those of the Court of Chancery
in England as local circumstances will permito


Every bill of injunction must have annexed to it an
affidavit vel'ifying the matters of fact therein stated.


Bills are entertained on behalf of married women fol' a
separate maintenance, and from the like necessity that
existed during the Comm9nwealth in England-the want
of an Ecclesiastical Court to decree alimony.


The appointment of receivers to estates" is much more
frequent in Jamaica than in England, amI forms a vel'y
important part of the jurisdiction of the court, and the
appointment is solely and strictly with the chancellor,
without any reference to the master. The appointment
is made OH petition, vel'ificd by affidavit, and an partics in-
tm'ested are at libel'ty to propose a fit persono


The receiver enter,'; into a recognizance, with a. sUl'ety,




JAMAICtJ.. 357
before a master, to the amount ol' Lhe estimated value ol'
two, and sornetimes three c1'ops, 01' othel' annual produce
of the property, lJotice ol' which, with the name ol' the
surety, is served on the othe1' party six days before; (9)
and this secul'ity is enl'orced by scire facias in the Su-
prerne Court. They account annually befare the mast@r,
except when the account al' sales is to be produced from
England, when some further time is necessary.----l Rep.
W. l. C. 2d series, 61, 63.


They are entitled to six per cent. on the gros s p1'O-
ceeds, which forms an ítem to their crcdit in the ac-
counts.


By the answers to the question, Whether the Court of
Chancery in England ever appoints receivers, or makes
any orders 01' decrees respecting real property in this
colony? it appears that sucli orders are not frequent; but
they would, as stated by thc Attorney-general, be en-
forced in every respect by the Cou1't oi' Chancery at Ja-
maica.


The mode of ma1'shalling the assets 'Hndel' a decrce to
account is thesame as in England.-l Rep. ,Y. l. C.
2d series, 64.


It scems that tacking (01' the practice of permitting the
holder of a third mortgage to take precedence of the se-
cond by redeeming the fil'st mortgage and annexing his
security to the third mol'tgáge,) is not allowed at Jamaica,
beca use such a doctrine would interfere with the priority
acquired by the time of recording mortgages 01' obtaining
judgments where slaves are concerned.


The costs in this cou1't are taxed by the registrar as
between party and party, and frequentIy as between soli-
citor and client, on application to thecourt.


The l11asters in ordinary of this court are at present
three in nUl11ber. They are appointed by thc chancellor
ana removable by hil11, and he is not }imited as to the
number. They reside at the seat of government in
Spanish-Town. There are also sorne few individuals re-
siding in the country who have l11aster's commissions, and
to WhOlll occasionalIy references are made, and who, with
the l11asters extraordinary, adl11iniste1' oaths and take re-
cognizances.


The registrar is notaware of any qualification being


(9) Tbis is elljoined to be done by the ma¡tel' by tbe act 4 Geo. 4, c. 21,
under u penalty of ;CilOO.




358 JAMAICA.
necessary beyond the reputation of being a good account-
ant.-l Rep. W. 1. C. 2d series, 65,66.


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


mission to the Governor, who (or the person adminístering
the government) is, by virtue thereof, Ordinary and sole
judge.


The subject-matters of the court's jurisdiction are the
probate of wills and granting letters of administration, and
the ordinary also decides in aU cases of contested adminis-
tration and as to the validity of wills.


AH wills afl-ecting real and personal property in this
island are proved in this court, in common or in solemn
formo


When a will is proved in a soIemn form, al:ticles are
exhibited by the promovcnt; an answcr is filed; and
when the cause is at issue, intel'l'ogatories are exhibited
and witnesses examined.


Probate of the will as to personalty is conclusive, and
in a case refel'red to by the Attorney-General was held
so even as to real property.


The following mode of proving wills uncontested was
given by the Colonial Secretary, who is clerk of the court:
-A dedimus is granted by the Governor to certain per-
sons to take the examination of witnesses attesting the
execution of the wilI. A dedimus also at the aame time
issues to qualify the executors named in thc will, and
another dedimus issues to qualify certain persons as ap-
praisers to the estate, accompanied bya warrant to such
persons to act as such appraisers. A bond is also signed
by the qualified executor, with pl'0pCl' securities, duly to
administer according to law. When those several forms
have been complicd with, letters testamentary are granted
to the executor, as his authority for acting.


Original wills, after they have been proved and recorded
in the secretary's office, are carefully preserved there and
never again permitted to he taken out, except by order of
the Governor, hut the instances are very rareo


The Governor sits alone in this court, without any as-
ses sor 01' other person to assist his judgment.


This comt has no jurisdiction to pronounce a sentence
of divorce, 01' to decree alimony.


It has no power of enforcing obedience to its sentences;




JAMAICA.


It has no authority to excommunicate, nor is it armed
with any other process to punish contempt 01' carry its
orders into execution. For this reason no costs are given
in this court.


Neither the probate of a will nor the grant ofletters of
administration authorizes the executor 01' administrator to
enter on 01' possess himself of the real estate of the de-
cea sed.


H V cry frequently, however," added the A ttorney-
General, "the executors and a<lministrators possess them-
selves of such real estate when the heil' is absent from the
island and unrepresented."


A record is kept of the proceedings of the court in the
secretary's office. 'rhe secretary of the island is clerk of
the court.-l Rep. W. l. C. 2d series, 69, 70.


COUl't ol Vice-Admiralty.
This court derives its authority from letters-patent


under the great seal of {he Admiralty.
'rhe present judge holds his appointment by virtue of


a commission under the hand and seal of the Governor.
'rhere is only one judge, who is designated Judge and


Commissal'y of the court. He is appointed during His
Majesty's pleasure, and liable to be removed at his com-
mando 'rhe only remuneration which the present judge
receives consists of fees upon civil proceedings in this
court; those fees in 1824 amounted to <t146. 148. eur-
rency, 01' ~104. 15s. 8d. sterling.


Thc judge praetises at the bar in the Courts of Chan-
cery and Common Law.


The offieers of this eourt, besides the judge (who has
three surrogates for the examination oi witnesses) and
the advocate-general, are the registrar and marsha!. The
two latter are appointed by patent undet the seal of the
Admiralty, 01' by the Governor, when there is no Admi-
ralty appointment.-l Rep. W. l. C. 2d series, 70, 71.


Court of Admiralty Sessio1is.
'rhe court derives its jurisdictian from an aet of the


Colonial Legislature, 33 Cal'. 2, C. 8, s. 2. 'rhe Gover·
nor is authorized by that aet to issue a cornmission di-
rected to a judge of the Admiralty and other substantial




'360 JAMAICA.
persons, who are invested with the same power fol' the
trial and punishment of tl'easons, murders, pil'acies, and
other offences committed on the seas, as commissionel's
appointed in England under the statute Q8 Hen. 8, c. 15,
"for pirates." This is the Admiralty jurisdiction 01'-
dinal'ily resorted too


There exists, however, another of modern institution,
under the Act of' Parliament 46 Geo. 3, C. 54.


A commission under the great seal of Great Britain
may be directed to such four 01' more discreet persons as
the Lord Chancellor of' Great Bl'itain may think fit to ap-
point. These commissioners have also the same powers,
and over the same offences committed upon the sea, as
commissionel's appointed un del' the ~8th Hen. 8, c. 15,
have for trial in England.


The commission issued by the Governor under the
authol'ity of the Colonial Act, has always been direded to
the judge of the Comt of Vice-Admiralty (as the Presi-
dent), the Commandel'-in-Chief of the squadron, the mem-
bel's of His Majesty's Couneil, the Chief Justiee and
Assistant Judges of the Supl'eme Court, the Captain of
the Navy on the statioll, the Judges of Assize, Barristers
at Law, the Seeretary of the Island, the Receiver-General,
the Naval Offieers, and the Collectors and Comptroner~
of His Majesty's Customs at the differentports.


Of' this numbel', three constitute a comt, of whom the
Judge of the Vice-Admiralty is required to be one. His
assistants are gene rally two of the Assistant Judges, 01'
Judges of Assize.


Letters-patent of His late Majesty George 3, bearing
date Febl'ual'Y 1st, 1815, were transmitted to Jamaica, un-
del' the sta tute 46 Geo. 3, C. 54" direeted to the Governol',
the Lieutenant-Governor, the Judge ofthe Court of' Vice-
Admira1ty, the Chief Justiee, the Senior Membel' of the
Couneil, the Commander-in-Chief of the naval forces,
and all admirals, captains, 01' commandel's of ships within
the jurisdiction.


Offenees are tl'ied before either jUl'isdiction according
to the course of the common ]aw, and with the assistanec
of a grand and petty jury.


A prisoner has the benefit of a challellge to the same
extent as upon a trial f'ol' an offence eommitted upon
land.


The sentences passed by the eommissioners can only
be averted by the exercise of the prerogative of pardon,




JAMAICA. 361
which resides with the Governor, except in treason and
murder, when the Governor can only l'eprieve until the
pIe asure of His Majesty is signified.


The officers of the Court of AdmiraIty Sessions are the
clerk of arraigns and the marshaI.


The appointment of the Iatter is permanent; the former
is nominated by the judge of the Court of Vice-Admiralty
upon a commission being issued.-l Rep. W. l. C. 2d
series, 74, 75.


Custodes and Justices of tke Peace.
The custos is appointed by commission under the


hand and seaI of the Governor, 01' person exercising the
functions of Governor. His duties are similar to those
of the custos rotuIorum of a county in EngIand. His ju-
risdiction does not extend beyond the pal'ish fol' which
he is appointed. He holds his office during the Govcr-
nor's pIeasure.


He has the appolntment of the clerk of the peace.
Justices of the peace are also appointed by the Gover-


nor, by whom they are removable at pleasure. Their
duties are those which belong to that office in England,
with certain additional duties in relation to the sIave po-
pulation. Their jurisdiction is limited to the parishes for
which they are respectively appointed. .


Thel'e is no qualification of property requisite to their
appointment, but they are gene rally freeholders.


The custos generally recommends a person to the office
of justice, but such recommendation is not essentiaI to the
appointment.


The justices of the peace have a judicial criminal juris-
diction, under certain acts of the legisIature, reguIating
the police of their parishes, exclusive of their jurisdiction
when sitting as members of the Quarter Sessions and
Slave Comí.


Two justices of the peace, under the act 5,'5 Geo. 3, c.
19, can hear and decide in a summary way matters in dis-
pute between masters, and servants, to an amount not
excecding cCIOO. .Two justices may also decide in a
similar way civil cases between party and' party to the
amount of forty shillings.


The proceedings in these cases are 110t removable ¡nto
another court.-l Rep. W. l. C. ~d series, 75, 76.




36~ JAMAICA.


Court oJ Quarler Sessions.
The court is composed of three 01' more magistrates;


three, however, are required to form a court.
The custos, 01' in his absence the senior magistrate, sits


as chairman. .
The jurisdiction of the Court of Quarter Sessions, as a


court of criminal judicature, is co-extensive with that
exercised by the Court of Quarter Sessions in England,
and the court is assisted by a grand and petit jury.


The indictments are prepared by the clerk of the peace,
and prosecutions are conducted by him. .


Coullsel occasionally attend, attornies at law frequently;
but in most illstances the parties act for themselves.


This court has a concurrent jurisdictioll with the Su-
preme and Assize Courts in those criminal cases which do
not extend to life, 01' in which an exclusive jurisdiction is
not given to the latter comts.


The punishments which can be inflicted by this court
are fine, imprisonment, and whipping; and its sentences
are carried into execution by the provost marshal 01' his
deputy.-l Rep. W. 1. C. 2d series, 77 .




Insolvenls.
There are no bankrupt laws in this colony, but there is


an Island Act for the l'elief of insolvent debtors, the 4th
Geo. 4, c. 11, under which an insolvent debtor may ob-
tain his dischal'ge by a surrender of all his effects, and
there is no distinction between the cases of trader and
non-trader.-l Rep. W. l. C. Zd series, 87.


Attorney-General.


This officer is appointed by letters-patent from His Ma-
jesty, and removable by him alone. He may be suspended
by the Governor with the advice of ~he council until His
Majesty's pleasure be known.


He is usually appointed a member of His Majesty's
Council, but is not necessarily so.


'Vith respect to all criminal prosecutions, the office is




JAMAICA. 363
co-extensive with that of Lord Advocate of Scotland. AH
indictments are prefel'red by him in civil and revenue
cases; he appears for His Majesty when the Crown is in-
tel'ested. He is sworn as magistrate for the body of the
island. He practises as a barrister.


The amount of his salary and fees, as Attorney-General,
does not exceed 1'700 per annum, and he is not allowed
any clerk 01' offiee.


He attends an the COUl'ts at which counsel attend, ex-
eept the Cornwall Assize Court, owing to its distanee
from the seat of government. He appoints a barrister to
act for him there.


He possesses and exercises the same powel' as the
Attorney-GeneraI of EngIand in entering a tlOlle P"o-
sequi. for which he does not receive any fee or perquisite.
-l Rep. W. 1. C. 2d series, 88.


Colonial Secretar!J.


The secrctal'y of the island was appointed by His Ma-
jesty's letters-patent.


He has leased his office to the present acting secretal'y,
who gives IUl'ge secul'ity to the patentee for payment of
the rent, which is ~3000 sterling, and the due discharge
of his duty, as well as security to the colony; the patentee
does not give security to the island.


The colonial secretary being also clerk of the council
receives two salaries, one of ~270, and another of .f4~O.
The remainder of his emoluments are established by the
Rct 56 Geo. 3, c. 19.


His duty is to record aH papers sent to his office for
that purpose, also aH laws of the island, copies of which
he sends to the Secl'etary of State for the Colonies and
Clerk of the Couneil.


The acting secretary estimates his emoluments at an
average of .i'846 per annum.-l Rep; W. r. C. 2d se-
ries, 89.


Provost flrfarshal;
This officer is appointed by patent from the Crown,


and is l'emovable by His Majesty's representative in case
of malversation.




364 JAMAICA.
He is the executive offieer of the laws aml keeper of aH


the prisons in the island. His duties are analogous to
those of sheriff in England; and in adJitioll to those du-
ties he discharges those of sequestrator in Chancery,
usher of the blaek rod, and water baliff.-l Rep. !2d se-
ries, 89, 90.


Coroners.


There is a Coronel' in eaeh parish of this island, elected
by the freeholders thereof, and in the parish of Port
Royal there are two; they would be removable by wl'it as
in England. By the aet 11 Geo. 3, c. 3, s. 1, the laws
and statutes of England eoneerning coroners are declared
to be in fOTee in tbe colony,. tbeir fees are ]'egulated by
that aet, and inereased by 4.1 Geo. 3, e. 13.


There is no salary attaehed to the offiee, but the coronel'
is entitled to afee of .i5 on each inquisition, together
with 2s. 6d. for every mile he has to travel in taking the
same.-l Rep. 2d series, W. l. C. 91, 9!2.


Appeals to tite King in Council.
An appeal lies immediately to the King in Conncil


from the Courts of Chancery and Ordinary, and ultimatcly
from the Comt of Error.


No appeal lies from the Comt of Error when thc
amount in dispute is less than ~500 sterling (costs not in-
cluded.)


Interlocutory orders made in equity are appealable, but
not those which are made at law, said the Attorney-Ge-
neral. The Registrar of the Court of Chancery stated
that appeals from the Court of Chaneery are common
from aH orders, excepting those fOl' cost:;; alone, and for
contempt of process. Such part of an order appointing a
receiver, as relates to change of possession mcrely, is
Jiot suspended by an appeal; in every othcl" case the pro-
ceedings are stayed ipso Jacto.


"The chancellor," he says, "has no doubt the power uf
refusing to grant an appeal, and within his recollection it
was exercised by General Morrison; on that occasion he
searched for precedents, and found seven." The doctrine
laid down here by the registrar is too unqualified; fOf
(say the commissioners) "we conceive that where the sut1l.




JAMAICA. 365
in question amounts to cf500 sterling, the office of the
Governor, in granting the appeal, and issuing the order to
the comt below 1'01' the papers, and fixing the security, is
merely ministerial; in fact, on an application to the Lords
in Council in the case of Ross v. Moliere, in the year
1822, they made an order on the Lieutenant-Governor of
Demerara to grant an appeal which he had refused in this
case, and to send home the papers. The present chancellol'
(the registrar observed) has on several occasions publicly
expressed himself favourable to appeals, and he has shown
such disposition by never refusing one; and the observa-
tion of the Attorney-General was, that when a question
has al'isen on the Kíng's instructions respecting appeals,
the leaning of the court has ever been in favour of the
r¡ght of appeal."


The appeal from the Court of Chancery to the King in
Council is written at the foot of the draft order when sub-
mitted to the solicitor for perusal, and befare the same is
ente red in the registrar's office. The appellant, with a
surety, enters into a bond of cf500 to prosecute the appeal
and answer the costs that may be awarded against him.
Such security ought to be given in strictness, said the
registrar, within twenty-eight days froro the order being
entered, 01' the appeal may be disroissed; but twenty-
eight days further may be obtained, if required, on coro-
roon petition. After such secmity is given, the appeaI
cannot be dismissed in this colony at the instance 01' thc
respondent, otherwise than with consent.


With respect to appeals froro the Court of Error, on
judgments at law, the appelIant roust note his appeal
within fourteen days, and en ter into similar security; froro
the unwillingness, however, of the courts to interpose any
obstacle to an appeal, there is great laxity in the practice
as to the time of appealing.


Personal secul'ity is alIowed in cases of appea1, and un-
incumbered real property is not required.-l Rep. W. I.
C. 2d series, 92.




( 366 )


NORTH AMERICAN COLONIES.


THE BAH AMAS.


-


THE first in the list of those colonies, which are usually
denominated the North American Colonies, are the Ba-
hamas, 01' Lucayan Jslands. The chain of islands which
bears tbis name is of vast extent. The ¡slands líe from
latitud e ~1 o 30' to ~7° 30', and from 74° to 80° west lon-
gitude. They are composed of innumerable rocky islets,
called keys and islands, of which not more than 1201' 14
are inbabited. The settled islands are stated to be New
Providence, (in whicb Nassau, the capital, is situated,)
Turks' Island, Eleuthera, Exama and its keys, Harbour
Jsland andkeys, Crooked Jsland, Long Jsland, Sto Sal-
vador, (the first place discovered by Columbus, and so
named because it was discovcred witbin the three days,
at the end of which he had been compelled by his mu-
tinous crews to promise to return to Spain, if before the
expiration of tbat time they did not see land,) the Caicos,
Watling's Jsland, Rum Key and Henegua. Some of the
largest of the Bahamas, such as the Great Bahama and
Lucaya, are still uninhabited. On their first discovery
the Spaniards carried off 01' destroyed the inhabitants,
and until about 16~9, the whole of the islands are said to
have remained unpeopled. They rise, it is said, almost
perpendicularIy from an immense depth of water, and
seem to have been formed from an accumulation of shelIs
and sand. At the utmost depth to which the inhabitants
have penetrated, nothing has been faund but calcareous
rock, and an intermixture of shelIs. (1) The calcareous


(1) 4 B. Edwards, 224, citing M'Kinnen.




THE BAHAMAS. 367
rock is covered by a light soil, frequently but of small
depth. The cIimate is heaIthy. There are no rivers
and streams, but water is easily obtained by digging weIls.
Cotton, salt, mahogany, dying woods, turtle, and fruit,
are the exportable commodities of these islands. .


HISTORY AND CONSTITUTION.


New Providence was settled in 16529 by the English,
but they were expelled in 1641 by the Spaniards, who,
though they did not. settle there, seemed determined that
no one else should do so. The colony was resettIed by
the English in 1666, but they were again expeIled by
a combined French and Spanish Heet in 1703. N ew
Providence then became the resort of pirates, whose
depredations at length compeIled the government to intel'-
fere in 1718, and they determined to resettIe the colony.
The pira tes were suppressed by a force under the com-
mand of Captain "Voodes Rogers. Settlements again
began to be made, and in 1740 the town and harbour of
Nassau were fortified. The islands were attacked in
1776 by Commodore Hopkins, with a squadron from
Philadelphia, amI capitulated in 1781 to a Spanish force
under Don Galvez. By the treaty of 1783 they were
l'estorcd to the British Cl'own, but while that treaty was
under consideration in Europe, the islands themselvcs
were l'ecaptured in a most gallant and romantic manner
by Colonel Deveaux, an American royalist. At the close
of the contest, in which England had been then engaged,
many of the royalist party among the Americans settIcd
in New Providence. In 1787 Nassau was declared a
free port, and in 179B the privilege before granted was
made perpetual. It has ever since becn numbered among
tbe free ports of the colonies in the acts relating to colo-
nial trade.(B)


The Council, which is appointed by the Crown, consists
of twelve members.


The House of Assembly i8 composed of members re-
turned by the different islands. Their numbcr is be-
tween twenty and thirty. (3) The possession of BOO acres


(2) See the laó! ac! on this subject, 3 & 4 W. 4, e.59.
(3) 4B. Edwards, ~27.




368 THE BAHAMAS.
of cultivated land, 01' of property to the value of i2000
currency, is the qualification requil'ed in a candidate.
The electors are aH free white persons, who have resided
twelve months wfthin the government, for six of which
~hey mllst have J1een householders 01' fi'eeholders, 01' in
default of that, must have paid duties to the amount of
J?50.


ACTS OF THE LEGISLATURE.


These, at the period of the commissioners' visit to the
colony, wel'e comprised in four printed volumes, and in
four parts of a 6fth volume, extending to the date of De-
cember, 1824. See the third Report W. I. C. second
series, 21.


4 Geo. 3, c. 1, An Act "for the public registering and
recol'ding all Jeeds 01' conveyances that are 01' shaIl be
made of any lands, tenements, 01' hereditaments, negros,
vessels, goods, 01' effects, within the Bahama Jslands j"
subsequently amended by 46 Geo. 3, c. 16, and by the
2 Geo. 4, c. 36.


The twelfth and last clause of the 46 Geo. 3, c. 16,
declares, that deeds 01' conveyances 6rst recorded shaIl
have priority ofother deeds 01' conveyances of the same
lands, &c., although of prior date.


40 Geo. 3, c. 2, An Act "to declare how much the
laws of England are practicable within the Bahama
Jslands, and ought to be in force within the same."


This is what is termed the Declaratory Act of the
Bahama Islands, and does not admit of abridgment. It
gives a fun and clear account of what part of the law of
the mother country shan be deemed to be of force and
binding in the colony, instead of leaving it to the varying
discretion of the judges from time to time, as is the case
in many of the other colonies.


The preamble of the act is curious. It declares, that
"whereas the common law of England is the best birth-
right of Englishmen and of their descendants, but never-
theless is not in aU respects applicable to the circum-
stances and condition of new and distant colonies; and
whereas doubts have arisen how far the acts of parlia-
ment in which the colonies and plantations are 110t ex-
pressly mentioned 01' included imder general words, do
extend io these colonies aml plantations; by reason
whereof your Majesty's liege subjects of these islands




THE BAHAMAS. 369
have sometimes been in danger of being deprived of
the benefit of many good and wholesome laws; and
whereas it is expedient that all doubt be taken away
concerning a subject of such high importance; be it
therefore declared, that the common law of England in
all cases, where the same hath not been altered by any
of the acts 01' statutes hereinaftel' enurncratcd, 01' by any
act 01' acts of the Assembly of these islands, (except so
much thereof as hath relation to the ancient feudal te-
nures, to outlawries in civil suits, to the wager of law 01'
of batail, appeals of felony, writs of attaint, and eccle-
siastical matters,) is, and of right ought to be, in fun
force within these islands, as the same now is in that part
of Great Britain called EngIand." By sect. 2 it is enacted,
that "the several statutes and acts of Parliament hereinafter
particuIarIy enumerated and mentioned, are, and of right
ought to be, in fuIl force and vil'tue within and throughout
this colony, as the sume wouId be if the Bahama Islands
were therein expressly named, 01' as if the afol'esaid acts
and sta tutes had been made and enacted by the General
AssembIy of these Islands."
9 Hen. 3. c. 8
---18
20 Hen. 3. c. 1
---2
---- 9
3 Edw. 1. c. 4
---9
---15
----25
-,--26
-----28
---29
---30
----33
6 Edw. 1 c. 1.
13 Edw. 1. stat. 1. c. 1
-.---4
-----7
-----15
-. ------- 22
-. --~-23
-------31
-----34
----40
------45
-,------49
28 Edw. 1. c. 11
Stat. de fragentibus pri-


sonam.
1 Edw. 2


1 Edw. 3. stat. 2. c. 16
4 Edw. 3. c. 2
--7
--10


5 Edw. 3. c. 10
---- 14


14 Edw. 3. stat. 1. c. 6
18 Edw. 3. stat. 2. c. 2
20 Edw. 3. c. 3.
25 Edw. 3. stat. 5. c. 2
-------3
------5
------14
28 Edw. 3. c. 3
34 Edw. 3. c. 8
---12
38 Edw. 3. stat. l. c. 8
----12
50 Edw. 3. c. 6
1 Rich. 2. c. 12
5 Rich. 2. c. 8
8 Rich. 2. c. 4
9 Rich. 2. c. 5.
13 Rich. 2. stat. 1. c. 5
---- stat. 2. c. 1
15 Rich. 2. c. 2
---3
17 Rich. 2. c. 6
-----8
1 Hen, 4. c. 10


BE


, 2 Hen. 4. c. 11
4 Hen. 4. c. 18
---23
5 Hen. 4, e.5
--10
11 Hen. 4. c. 3
13 Hen. 4. c. 7


2 Hen. 5. c. 2
9 Hen. 5. slat. 1. c. 4
4 Hen. 6. c. 1
8 Hen. 6_ c.9
----12
-----15
---29
11 Hen. 6. c. 3
---6


1 Rich_ 3. c. 3
3Hen.7.c.2
---,¡¡,,-
----4
--·--10
4 Hen. 7. c. 12
-----13
---20
---24
11 Hen. 7. c. 12
----20


21 Hen. 8. c. 7
23 Hen. 8. c. 1
---5




370
24 Hen. 8. c.5
25 Hen. 8. c. 3
---16
27 Hen. 8. c. 4
-.--10
28 Hen. 8. c. 1
---15
31 Hen. 8. c. 1
32 Hen. 8. c. 2
----9
-----28
----30
---32
---33
----36
---37
-----38
33 Hen. 8. c. 1
34 &; 35 Hen.8. c. 5
37 Hen. 8. c. 6


1 Edw. 6. c. 7
2 & 3 Edw. 6. c. 24
5 & 6 Edw.6. c. 9
----p
1 Mary, stat. 2 c. 7
1 & 2 Phil.& M. c. 13
2 & 3 Phil. & M. c. 10
4 & 5 Phil. & J\1. c. 4
5 Eliz. c. 9
--14
8 E1iz. c. 2
--4
13 Eliz.c. 5
-.-6
18 Eliz. c. 5
--7
--14
27 Elíz. c. 4
----5
31 Eliz. c. 2


THE BAHAMAS.


: 31 Eliz. c. 5
. 39 Eliz. c. 9
--15
43 E1iz. c. 8


2 James 1. c.8
---- 11
4 Jámes 1. c. 3
7 James 1. c. 5
---12


21 James 1. c. 4
---6
----13
---14
---15
---16
----24
----27


13 Cal'. 2. stat. 2. c. 2
16 Cal'. 2. c. 7
16 & 17 Cal'. 2. c. 8
17 Cal'. 2. c. 7
-----8
19 Cal', 2. c. 6
22 & 23 Cal'. 2. c. 1
-----7
--.---- 10
29 Cal'. 2. c. 3
----·5
---7
30 Caro 2. C. 7
31 Caro 2. C. 2
3Wm.&M.c.9
---14
4 Wm. & M.c. 4
4 & 5 Wm. & M. c. 16
----- 20
--._- 21
7 \Vm. 3. c. 3
7 & 8 Wm. 3. c. 34
8 & 9 Wm. 3.e.11


8 & 9 W. 3. c. 31
9 & 10 Wm. 3. c.15
____ 17


10 & 11 Wm.3.c.16
----23
1 Ann. stat 2. C. 6
1 Ann. C. 9
3 & 4 Ann. C. 9
4 Ann. c. 16
5 Ann. C. 6
--9
6 Ann. c. 18
8 Ann. c. 14
9 Ann. c. 14
12 Ann .• tat. 1. C. 7
--- 2.c.18
4 Geo. 1. c. 11
---12
5 Geo. l. c. 13
2 Geo. 2. c. 2
---- 25
4 Geo. 2. c. 10
--~-28
5 Geo. 2. C. 25
7 Geo. 2. c. 15
----20
---22
11 Geo. 2. c. 19
14 Geo. 2. c. 17
15 Geo. 2. c. 30
19 Geo. 2. c. 21
20 Geo. 2. c. 19
---30
23 Geo. 2. c. 11
24 Geo. 2. c. 44
---45
26 Gco. 2. c. 19


1


, 27 Geo. 2. c. 3
---20


I


By section 3 it is declared, that" a11 and evety the acts,
statutes, and parts of acts and statutes of the Parliament
of England 01' Great Britain, which relate to the prero-
gative of the Cl'own, 01' to the allegiance of the peopIe,
also such as require cel'tain oaths (eommonly called the
t;tate oath8) and tests to be taken 01' subscribed by the
people of Great Bl'itain, also such as declare the rights,
libcrties, and pl'ivileges of the subjeet are, and of l'ight
ought to be, of fuIl force and virtue witbin this eolony, as
the same wouId be if the Ballama IsIands were therein
expressly named, 01' as if the aforesaid aets and statutes
had been made and enacted by the General Assembly of




THE BAHAMAS. 371
these Islands." (See appendix to 3d Rep. W. l. C. 2d se-
ries, and Roward's Laws of Colonies.)


45 Geo. 3, c. 14,. An Act "for making provision for
printing the laws of the Bahama Islands and for other
purposes."


6 Geo. 4, e. 12. An Act "to authorise the bishop of
Jamaica to exereise ecclesiastical jurisdietion within the
Bahama Islands."


By this aet, after reciting that Ris Majesty had been
pleased to eonstitute bishopries in the islands and colonies
in the West Indies, and to erect the island of Jamaica
into a bishop's see, and that it was expedient to authorise
th~ bishop to exercise his ecclesiastical jurisdiction over the
clergy, it is declared, that alllaws, ordinances, and canons
ecclesiastical, which are now Llsed and in force in England,
so far as the same relate to jurisdiction over the clergy
therein, and aIl rules of proceeding for carrying the same
into effect, shaIl be held to be in full force within these
isJands, and tha t the j udges of . the General Court shaIl
enforce the execution thereof in the same manner as the
Comts of Common Law in England are authorised to do:
it is pl'Ovided, however, that nothing in this act contained
shan be construed to affect the rights of the governor 01'
commander in chief, as ordinary of these Islands (1).
(3d Rep. W. l. C. 2d series, 55.)


COURTS IN GENERAL AND THE LAW AND PRACTlCE
THEREIN.


'fhe following are the courts established in this settle-
ment for the administration of criminal and civil justice
respectively, viz., the Court of Chancery, the Court of
Error 01' of Appeal, the General Court (exercising both a
criminal and a civil jurisdiction,) the Court of Ordinary,
the Comt of Vice-Admiralty, the Court of Admiralty
sessions, the Inferior Court for the Island of New Pro-
vidence, and the Inferior Court for the Turk's Islands.


The system of laws which prevail in this colony, is
described to be founded upon the acts of its local legis-
lature, upon certain statutes and acts of Parliament
declared by a law ofthe colony to be in force therein, and
by the common law of England, " when thc same hath not


(1) See ante, p. 32, n. 5.
BBQ




372 THE BAHAMAS.
been altered by any of the said statutes 01' acts of Parlia-
ment, 01' by any act of the Assembly of these islands."


Where a question arises, whether 01' not a certain
English act of Pat'liament be in force in the colony, the
decision of course rests with the judges of the court
before whom the point is raised; but the following was
laid tlown to the Commissioners as the general principIe
by which su eh a question would be determined; premising
that by His Majesty's commission the Governor of the
settlement is appointed Captain General and Governor in
Chief in and over " our Bahama Jslands in America."


"The law of England extends to the colony, if the
Bahama Jslands eo nomine be ineluded, as in the Q8
Geo, 3, e. 6, and in some of the revenue and in the free
port aets; 01' if the words of the law are so general as
neeessarily to inelude them, as fOl' example, the statute 8
Geo. 1, e. 24, for the more effectual suppression of piracy,
which extends by the very words ofit to Asia, Afl'ica, and
America, aml the late aets of ~arliament for abolishing the
slave trade, and for making the same felony and piracy."


"The act also of 19 Geo. 2, c. SO, for the better en-
couragement of Ris Majesty's Sugar Colonies in America,
(which prevents seamen in the merehant service from
being impressed,) has been held on many Qceasions, by the
general eourt of this colony, to be in force therein." .


The acts of the legislature of this colon y are in the first
instance, as in the other colonies, prepared by the mem-
bers themselves, who bring tbem fOrW<11'd, and not by one
01' more individuals of legal knowledge appointed for the
pUl'pose, and are promulgated by printing. The commis-
sioners recommend the latter as the preferable course.


They are deemed to be in force from the time they have
been assented to by the Governor, unless, of course, they
contain, as in some they must, a suspending elause, and
they are taken notice of by the courts judicially and ex
qf!icio.


The Habeas Corpus Act, 31 Cal'. 2, c. 2, is in force
here under the Colonial Declaratory Act before men-
tioned.


The writ issues, ex debito justitia, out of the general
court, and would also (although an instance had not been
known) be issued out of the COl1l't of Chancery.


'rhe act i5 Geo. 2, c. 7, " for the more easy recovery of
uebts in the plantations," was adoptecl by the Colonial




THE BAHAMAS. 373
Act, 45 Geo. 3, c. 5, and the statllte of frauds (29 Cal'.
2, c. 3,) is in force here, amI also the following ncts fix-
ing the limitation of time for criminal prosecutions a11(I
civil slIits, 'viz. tIte stat. 21 James 1, c. 16, "for limitation
of actions and for avoiding of suits j" the stat. 24· Geo. 2,
e. 44, as to actions against justices of the peace; the 3I
Eliz. c. 5, concerning informers; and the 7th Wm. 3, c.
3, "fol' regulating tríals in cases of treason and misprision
of treason." There is al80 a Colonial Act of Assembly
(44 Geo. 3, c. J,) limiting the time within which certain
lands therein specified must be put in suit.


Counsel and Attornies.


The admi8sion of counsel, attornies, solicitors, and
pl'octors, to practise in the courts of this colon y , is regu-
lated by a local act, 39 Geo 3, c. 2, which provides,-
cl. 1, That no person shall act as a counsel, attorney, so-
licitor, ol' proctor in any court in this colony, unless he
shall have been called to the bar in Great Britain 01' Ire-
land, 01' admitted an attorney in the Comt of King's
Bench 01' Common PIeas in England 01' Ireland, 01' shall
ha ve served for five years as clerk to a counsel and at-
torney of the General Comt of these islands. And by el.
2, the fitness of the last class of persons may be examined
into by the judges of the General Comt.


Practice qf tite Courts.
There is no local l'egulatiofl pl'ohibiting a party from


being heard in pel'son in any of the courts here,
No obstacles are opposed to persons applying to sue


tn formá pauperis, provided they make the usual petition
and affidavit.--3 Rep. W. I. C. 2d series, 57,58.


The General COU7't.
This court was established by an act of thc local legis-


lature, passed in 45 Geo. 3, and is empowered to exercise
three distinct heads 01' classes of jurisdiction, viz. a civil,
criminal, and l'evenue jurisdiction, but the latte!', it ap-
pears, the COUl't has neve!' exel'cised as distinct from ite
ordinary civil jurisdiction.




THE BAHAMAS.


There are three judges of this court, who aH sit, what-
ever may he the class of jurisdiction the court is then
exercising, v.iz. a chief and two assistant justices, who are
appointed by the Crown during pleasure, and it appears
that since the year 1797 the qua1ification that a person
aspirlng to the office of chief justice shoulcl be a barriste!',
01' a person who has gone through a previous course of
legal stucly, has be en requirecl j but this rule, it is stated,
has not always been observed with regard to the assistant
judges.


'rhe emoluments of the office of chief justice arise from
ahorne salary of 1:500 sterling, a colonial salary of 1:500
currency (which is rather more that 1'Q90 sterling), and
certain fees w hich are fixed by the docket. These latter
amounted on an average of the five years preceding the
commission, to 1'338. ib, 6d. currency, (01' 1'197. 58. lld.
sterling.)


The assistant judges are allowed each a home salary of
1:200 sterling, and a colonial salary of 1'300 curl'ency (01'
1:l204. 3s. 4d. sterling),but no other emoluments, except in
the absence of the chief justice, when the s~nior assistant
justice is entitled to receive the fees of the chief.-3 Rep.
W. l. o. !2d series, 58.


Criminal Juri8dictian af the General-Caur!.
This court sits at the court-house in Nassau, (the seat


of government,) during three terms in each year, com-
mencing respectively on the thil'd Tuesday ill Junuary,
April, and July. It exercises the same jurisdiction as the
Comt of King's Bench in England, und is a Comt of
Oyel' and Terminer and General Gao1 Delivery.


The proceedings of the court are, in aH material points
(such as being grounded on previous examinations before
a magistl'ate on outh, the signing them by the pal'ty, and
their being bound over to prosecute, and the like,) toge-
ther with the form of indictment, pleading, &c. the same
as in England.


Only one instance was known of the court having 01'-
dered a criminal information to he filed, whiel! was in the
case of a gross misuemeanor j but the powers of the
Attorney-General to file sueh informations ex qfficio, were
cOllceivecl to be similar to thosc of the llttorney-General
in England.




THE BAHAMAS. 375
'fhe selection, impannelling, and securing the attend4


ance ofgrand jurors and the right of challcnge, &c. al'e
provided for by a local act (46 Geo. 3, c. 4.) 'fhe fol'e4
man ofthe grand jury is appointed by thc court; the
petit jul'Y chooses its own foreman. 'fhe grand jury is
charged by the chief justice 01' pl'esiding judge before
entering upon the dischal'ge of its duty.


Counsel are allowed upon the trial to address the jUl'y
on behalf of the prisoner in aH cases, and the commis4
sioners were informed that no inconvenience }tad evel'
been found to resuIt from such a pl'actice.


The chief justice 01' presiding judge sums up the evi4
den ce, and states to the jury the law of the case; the
other judges occasionally assist the chief in taking notes.


The Attorney-General has frcquently, it is said, exer-
cÍsed the powel' of entel'ing a nolle proseguí, both in
capital cases and in pl'osecutions fol' minor offences.


The officers of thc court arc the provost marshal, the
c1crk of the crown, and the crier of the comt; thc 61'st
is appointed by the Crown, the second by the Governor,
and the c1'ier by the chief justice. 'fhey an hold their
offices during pleasure.-3 Rep. "V. I. C. Qd series, 59,60.


Civil jurisdictíon of tIte Gelleml Court.
The Geneml Comt sits as a court of civil jurisdiction


at tbe court-house in the town of Nassau, during t1uee
terms in each year, commcncing on the thil'd Tuesday in
January, Apl'il, and July, amI has jU1'isdiction in an aC4
tions of which the Court of Common Pleas in England
has cognizance ;-"but real actions, except writs of dower j
are never prosecuted."


The rules and practice by which this court is guided
were framed in the yeal' 1797, by the then chief and aS4
sistant judges, and do lIot diffel' in any material respect
from tbos!'! established in thc Court of Common PIeas, on
similar points, in England. 'fhe pleadings are a1so
framed, as nearly as may be, according to the forl11s used
in the English courts.


The dower of a manied woman muy be baned by pri-
vate examination before a judge, and by a la W of this
colon y now in force (51 Geo. 3, c. 15,) husband dnd wife
may by deed convey the esta te of t,he wife, \)1' 01' the hus"




376 'l'HE BAHAMAS.
band ami wi~e jointly, situate in thc colony, without fine 01'
recovery.


The action of ejectment is the usual action resorted to
for the trial of titles to land, and may be barred by twenty
years' adverse possession.


Personal actions are commenced by wl'Ít of capias,
served by the provost marshal 01' his deputy, and a de-
fendant may be held to bail fol' any sum aboye ¿['20 cur-
rency, upon affidavit of the debt made before one of the
judges 01' the prothonotary, and filed, but not otherwise.


There appears to be no legal mode by which a plaintiff
can attach, in the hands of a third person, debts due to
the defendant.-3 Rep. W. l. C. 2d series, 60, 61.


W ritten depositions of witnesses al'e allowed to he givcn
in evidence, provided it be proved by affidavit that the
witness is not in the colony at the time his deposition is
tendered j and they are taken under the usual precautions
of de bene esse examinatiolls, accol'dillg to the provisions
of the General Court Act,--3 Rep. ""V, l. C. 2d series, 62.


Judgment may be entercd up at any time after the ex-
piration of eight days next after the trial of the last cause
in term (which is here called the adjournment day), and
execution may issue on the day after such adjomnment
day.


Lands are bound by the judgment from the time of its
being signed by the judge and filed with the prothonotary,
(which is equivalent to docketing in England,) and such
lands may be sold under the writ of jiel'i facias. Goods
and chattels are bound only from the time thc execution
is lodged with the provost marsha1.


No elegit, nor any process in the nature of such a writ,
is known in practice here.


Ajudgment after one year becomes superannuated, and
must be revived by scire facias.


Executions are, it is said, very generally suspended and
used as securities.


Lands in the hands of the heir 01' devisee are liable fol'
the dehts of the devisor 01' ancestor, if the personal assets
in the hands of the executol' 01' administrator are insuffi-
cient to pay the saruc.


An equity of redemption may be sold under an exccu-
tion issued on a judgment of this comt.


An appeal lies from this comt to the Court of Error
(composed of the Governor and Council) in an cases




THE BAHAMAS. 377
whel'e the sum in dispute amounts to .:eSOO sterling, and
the proceedings in thc court helow are at ·once stayed by
the wl'it of e1'1'or.-3 Rep. W. I. C. ~d sel'ies, 63.


Revenue JUl'isdiction of the Superior COUl't and
Escheats.


Jt appears that the General Court has never exercised
any distinct revenue jurisdiction as a Court of Exchequel',
whether in regard to escheats 01' the like, but in cases of
persons dying intestate and without heirs, 01' legal per-
sonal representa ti ves, seised 01' possessed of real 01' per- .
sonal estate, (which however is not of common occurrence
in the colony,) the proceedings are laid before the Go-
vernor, as chanceIlor, as to the escheat of the real estate,
and before the Governor, as ordinary, with regard to the
personal property, the nominee of the crown obtaining
letters of administration to the estate and effects of the
deceased intestate. •


The practice with regard to the cases of such coloUl'ed
persons, possessed of moderate property, as may die in-
testate, leaving only illegitimate childl'en, appears very
liberal, it not being usual for the Attorney-General 01'
other officcl' of the Crown to put in motion any process of
escheat.-o Rep. W. 1. C. ~d series, 63, 64.


Inferior Court.
This court, ayer which one judge alone presides, who is


appointed by the king's representative and holds his
office during pleasure, was established by colonial enact-
ment in the year 1796, and by the Court Act in force at
the time of the commission (viz., 45 Geo. 3, c. Q~,) had
jurisdiction over "aIl debts whethel' by bond, note,
account, book debt, assumpsit, 01' otherwise, and also aH
complaints for trespasses, damages, 01' injuries sustained,
where the rights of the crown, and the titles of lands are
not concel'ned, provided the debt sued for, 01' the damages
laid, sha11 exceed the sum of .:eS, and be not more than
.:e~O lawful money of these islands." The jurisdiction of
the court has since been raised to .:e40 currency.


The jurisdiction of this court extends beyond the
island of N ew Providence to a11 other islands and keys




378 THE BAHAl\IAS.
within this govel'lllnent except Turk's Jslands, which há:ve
been specially pl'ovided fol'. No appeal lies from the
decision of this court to anS other tribunal.-3d Rep.
W. l. C. Bd series, 64. . '


Courtscif Appeal and Error.
An appeal Hes, though the right appeal's to be l'al'ely


exercÍsed hel;e, from the judgments of the General Court,
to the Governor and Council as composing a Court of
Error, aneI from the latter tribunal to the King in Council,
under the provisions of the 10th section of the General
Court ACt (Bah. Law, vol B, p. 7,) as amended by 6 Geo.
4" c. 8, and of an express article in Ris Majesty's in-
structions to the governor, but no appeal will líe in the
fil'st instance, except fi .. om the Comt of Chancery, to the
King in Counci!.


N o judge who sat as a memhel' of the comt below, when
the judgment appealed from was pronounced, can sit as a
member of the Court of Error upon the hearíng of the
appeal from his decision; but he is at liberty to he present
at such hearing, and to assign the reasons of the judgment
given in the court below.


Twenty days is the time limited within'which the writ of
error, (which is obtained on application to the governor and
giving due seéurity to prosecute,) must be procured, and
on the issuing of the writ, all process of the court below is
at once stayed.


Costs rtl'e consideren in the díscretion oi' the comt, and
are taxed by the clerk of the councíl, who i8 also ex qfficio
clerk and registrar of the Court of Error. His fees are,
as indeed an thc fees in this comt, the same as those
charged in the Court of Chancery.


Cotlrt of Chancery.
The judges of this court are the Governor of the colony


for the time being, (who presides,) and the members of
Ris Majesty's Council.


The court possesses the same ordinary jurisdiction,
within the colony, in addition to its general equity juris-
diction, as is exercised by the Court of Chancery in
England. In the cases of idiotcy amI lunacy, a special
power is delegated to the Governor, by the express words
of his instructions.




l'HE BAHAIIfAS. 379
In the case of infants the court has authol'ity to appoint


guardians to their persons and estates.
This court has no jurisdiction to assign dower; but it


may cause partition. to be made of lands held in joint
tenaucy, 01' tenancy in eommon, 01' eopareenary.


The proceedings of this court are, in allmaterial points,
analogolls to those in England, and the books of practice
which are used there, govern the pl'actice and proceedings
here.


Bills to perpetuate the testimony of witnesses are
entertained by this comt, and it also issues commissions
to examine witnesses de bene esse.


This comt wouId entertain a bill on behalf of a married
woman fol' a separate maintenance, on account of mis-
conduct by the husband, on the ground that the wife wouId
otherwise be without remedy, inasmuch as a divorce
propter sce¡;itiam could not be obtained in the Court of
Ordinury in this colony, the jurisdiction of which is ex-
pre¡;sIy confined to the granting of marriagc licenses and
the probate of wills.


BiIls for the foreclosme of mortgages are síated to be
altogether unknowIl in the practice of thia court, in con-
sequcnce of the 'facility afforded to mortgagees by sectioIl
10 of the Consolidated COUl't Act, under which the real
property of the mortgagor, when sued at law upon his bond,
may be taken in execution and soldo


In this colony no prefel'cnce, it is said, is given to debts
nece¡;¡;aYl\)' incurreu foy the expenses of a plantation, such
as charges fOl" supplies and repairs necessary to render the
estate productive. In othe1' colonies, where the opposite
practice prevailed, the commissioners were universally in
favour of its continuance.


The number of masters attached to this court (and who
also act as examiners) is not fixed or limited.


Thcy give no security fol' the due dischargc of the
duties of their office.


Jt is not requisite that a master should be a barrister
nor is any particular qualification llecessary to his eli:
gibílity.


Their duties are the same as are required of the Jike
officers of the Comt of Chancery in England.
. They neve!" retain the money of the suitors in their
hands, the same when l'eceived being paid into the
fegistry of t11e court, or to the parties entitled thel<etó
under the deeree of the court.




380 THE BAILÜlIAS.
'rhe public secretary, 01' registrar of records of the


colony, discharges the duties of registrar of this court,
which are stated to he generalIy the same as those executed
by the like officer 01' his deputies in England.-3d Rep.
W. l. C. 2d series, 65, 66.


Court o/Ordinal'Y.
The jurisdiction of the Court of Ordinary in the


Bahamas, is derived, as in aH the other colonies, from the
King's commission to the Governor, and a special article
in the governor's instructions.


He possesses no jurisdiction to pronounce a sentence of
divorce 01' alimony.


AlI wills affecting real 01' personal property are proved
in this comt by oath of the executor and one at least of
the subscribing witnesses, should the latter be within the
colony, if not, by the executor and sorne person acquainted
with the handwriting of the testator. Proba te thus
passed has no other effect than to authenticate the right
of the executor, so far as relates to the pe1'sonal estate of
the deceased, nor does the objectionable practice prevail
here, as it does in many of the other colonies, of the exe-
cutor assuming the l'ight to interfere with and possess
himself of the t'eal estate.


The office of Registrar of this court is exercised (quasi
ex qfficio) by the public secretary of the records of the.
colony, and with him an the original wills, after they have
been proved, are left, in order that they may be put on
record, and afterwards remain in the registry. The
probate is recorded with the will; inventories and ap-
praisements of the estates are recorded also.


The proceedings in this court in contested cases are
said to be analogous to those in England.-3d Rep.
W. I. C. l2d series, 67.


Court if Vice-Admiralty.
The jurisdiction of the Vice-Admiralty Comt in thesé


islands, is derived from His M ajesty's commission of Vice-
Admiral to the Governor.


'rhe judge is removeable at the pleasure of the Crown.
He receives no salary, nor do the officers of the court, the
registrar and marshal, but they are all paid by fees, which




THE BAHAM¡\S. 381
are established by an Act of Assembly of the colony (7
Geo. 4, c. 4.)


In no case is the comt aided by a jury.
The subject-matters of its jmisdiction are, gene rally


speakíng, cases of revenue seízul'es. Cases of salvage
and suits for seamen's wages are, ít ís saíd, rarely brought
before the court.


The laws whích thís court follows in the discharge of
its functíons are those by which the High Comt of Ad-
miralty in England (sitting as an Instance Court of Admi-
ralty) would be governed. The jurísdiction of this court
extends to cases of smuggled goods. •


Parties desírous of appealing from this court to the
Hígh Court of Admiralty in England, must pray for such
appeal within fourteen days after 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 qf Admiralty Sessions.
This court derives íts jurísdictíon from a Colonial Act


passed in the year 1805, which empowers the Governor
to issue a commission under the great seal of these is-
lands, directed to the judges of the Vice-Admíralty Court
for the time being, the judges of the General Court, and
such other substantial persons as by his Excellency shall
be named, for the trial of aH murders and other offences
committed on the high seas, where the Admiralty hath
jurisdiction.


The sentences of the comt, which are in all cases sub-
mitted to the Governor before being carried into execution,
are IlOt considereel by the local authorities subject to re-
vision by any other comt, but a motion in arrest of judg-
ment might, they saiel, he made in this as well as in the
General Court.


The officers of this comt 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 salary of .:C40 currency; they re-
ceive no fees, and are removable at pleasure.-3 Rep. W.
l. C. ~d series, 69.


Justices 01 the Pea ce.
The justices of the peace in this colony are appointecl


by the Governor, and are removable ut his pleasure.




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 fol' all manner of
debts, trespasses, 01' damages, to the value of .eS Bahan1a
eurreney, 01' under, wherein the title to lands is not eon-
cerned."


Their mode of taking examinations on criminal charges
and recognizances doe:;; not diffel' from the practice in
England.


Pree Colollred Persons.
By the Colonial Act, 529 Geo. )2, all persons aboye three


degrees removed in a lineal deseent from the negro an-
cestol' exclusive, are deemed whites, and entitled to aIl
the pl'ivileges of that class, pl'Ovided they al'e 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 COUl'se be
subject to alterations as to the possession of such pro-
perty now intl'otluced by the Slavery Abolition Act.


lnsolvents.
There are no bankrupt laws in this colony, and the


examinants said that their introduction would be by no
means desil'able. By the law at present in force, undel'
whieh no frauds have be en eommitted, and whieh illdeed,
the examinants saiel, in express terms, "has been founel
to be a wffieient seeurity to the ereditor," a prisoner fol'
debt, on dclivering up upon oath in the usual form, an
his property to his creditors, and making affidavit that he
is unable to maintain himself, is elltitIed to an alIowanee
from the cl'editol' of 1s. tid. per rliem, and on failul'e of
paym~nt of the same to be dischal'ged.-S Rep. W. l. C.
)2d series, 73.


Attorney and Solicitor-General.
The duties of these officers difter in no respeet from


those of the Attorney and Solicitor-General in the other




THE BAHAMAS. 383
colonies v!sited umIel' the commission, amI they, in like
manne!', are appointed by the Crown and removablc at
pleasure.


The Attorney-General has a home salary of ~150 sterl-
ing, and a colonial salaryequal to ~g¿63. lOs., besides
fees, which are regulated by the fee bill in the General
Court Act. The Solicitor-General bas no salary.


Colonial Secretar!!.
The Colonial Secretary is appointed by the Crown and


is removable at pleasure. His home salary is cf150
sterling, the colonial salary .i'4·95. 16s. 8d. (including ~:250
currency per annum as clerk to the legislative council,)
and bis 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 officel' in the other colonies, are executed
by deputy as well as in person, anel neither of the persons
gives any security to the colony.


In addition to holding the appointment of colonial se-
cretal'y, this officer is ex qfJicio clerk of the Legislature
and of the Council, and registrar of the COUl'ts of Chan-
cery, Ordinary, and Error, respectively.


Provost Marshal.
This is a patent office held under the Crown, by which


authority onIy this officer says he is removable, hut that
lle may be temporarily suspended by the colonial govern-
mento He has helel the appointmellt (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 thc office of provost mal'-
shal general of the colony, is al so provost marshal of thc
Comt of Admiralty Sessions and of the Inferior Court.
His emoluments are thus enumerated by him ;-" As pro-
vost marshal hé has an annual salary of ..{180 sterJing
from the Crown, payable in England; in lieu of aU de-
mands against the colony for ordinary sel'vices, he has a
further anuual 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 emolllments are
independent of fees, which are regulated by colonial en-
actments.-3 Itep. W. l. C. 2d series, 74.


Coroners.
There are two coroners withín this government, one


fol' 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. Tbey
receive no salary, but are entitIed by a Colonial Act to a
fee of .e6. 18s. cmrency on each inquest.-3 Itep. W. l.
C. l'!d series, 76.


Police JJlagistrate or Officer.
This officer is appointed by tbe 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 sin ce by the 8 Geo. 4, c. 2. They do not seem to
call for any particular observations. He bas a salary of
,i'800 currency, witb certain fees as regulated by the Co-
lonial Fee Bill.-3 Rep. W. 1. C. 2d series, 76.


Appeals to the King in Council.
An appeal to His Majesty in Council lies immediately


from the decree (but in no case from the interlocutory
order) of tbe Court of Chancery, provided the sum in dis-
pute (exclusive of costs) exceeds ,i'500 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 tbitber from the
General Court.


It is tbe province of tbe Govemor, and to him must
application be 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. 2d series, 76.


Foreign Judgments and Contraets.
A judgment obtained in England, or elsewhere, is held




THE BAH AMAS. 385
of no other force and effect in the COUl'ts of this colony
than that upón an action of debt brought in the colony
the record of judgment properly authenticated would be
held evidence of the debt) su~~osin~ of course that, on the
face ofít, it díd not appear unjust and contrary to reason.


The judgments of an English court of competent juris-
diction, in cases of bankruptcy, have be en held in this
colony valíd, so far as thatthe as signe es 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 be en in such cases
conveyed by deed from the bankrupt to the assignees.


When the guardian of a minor, 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 private 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 ahode 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 usually solemnized in this colony by a
minister of the established church, after the publication
of banns, 01' by license from the G overnor 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. Tbe only Act of Parliament re-
lating to marriages in force hel'e is the SB Hen. 8, c. 8.


On a question which was put by the commissionel's as
to the eflect of a marriage celebl'ated abroad.accol'ding
to the law of the countl'y, where the same was had be-
... _-~. ------------


(2) Sce ante, p. 32.
ce




386 THE BAHAMAS.
tween persons possessed of real property, in regard to this
property, supposing the Jaw of the two pIaces to differ
thereon, the examinants stated as their opinion that the
wife would in such case he entitled to dower in the real
estate, according to the laws of EngIand which prevail
here, and they thought it wouJd make no difieren ce in this
respect whether the marriage had been ceIebrated bonil
fide, 01' infraudem legis domicilii originis.


The examinants further stated that a marriage cele-
brated out of the colony, between parties who had children
before such marriage, would not have the effect of legiti-
mating 'such children in this colony, a1though a contrary
law might prevail where such mal'l'iage was solemnized,
as in Scotland, for example.-3Rep. W. lo 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 hel'e; and no distinction
prevails in this respect between the wills of w hite 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 respects the laws of England regulating the same
matters.-3 Rep. W. I. C. 2d series, 78.


Passes to Quit tlle CoZony.
By an act of this colony (1 Bahama Laws, p. 343,) every


person who has be en resident therein for thirty days 01'
upwal'ds, wishing to depat·t, is obliged to affix his IIame to
a papel' in the colonial secretal'y's office, amI to give
fifteen days' notice of such his intention, before he can
obtain what is callea a pass. This pass may be withheId
at the instance of any cl'editor of the person so announc-




THE BAHAMAS. 887
ing his ¡ntended departure, by the creditor lodging his
caveat thereto, and the latter is not bound to enter into
any security to answer condemnation in costs and damages
upon subsequent judicial proceedings being had in the
matter.


There is a mode of próceeding in this colony 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 Chancery,
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 latitud e, 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
1522, and found them destitute of inhabitants. Their
second appellation tbey take from Sir George Somers,
who was wreeked on them in 1609. The cluster of Ís-
lands is said to be 400 in number, the fal' largest portion
are however nothing more than uninhabitable l'ocks, the
whole of the inhabitable parí containing little more than
12,000 acres. The climate of the Bermudas is said to be
salubrious. The soil ls fertile and capable of producing
every al'ticle of 'Vest India produce. The chief island is
Sto George's, which is about sixteen miles in lengtb, and
at most three in breadth. Jt contains a town of the same
name.(l)


HISTORY AND CONSTITUTION.


The hononr of being the earliest visitant of tbese islands
is claimed for an Englishman named May, who was
wl'ecked 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 construeted
by his men from the timber growing on the islands, and
whieh vessel it is said did not eontain one ounee of iron,
except a bolt in the keel. The fact probably was, that the
shipwreeked mariners had lost almost every thing, and
that necessity compelled them to build this vessel without


(1) 4- B. Edw. 231 lo 240.




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 orthe abundance
of black swine whiéh he had seen at Bermuda induced
Lord Delaware, who was then Governor of Virginia, to
send him back fol' a supply. Sir George died almost im-
mediately after his arrival at Bermuda, and his crew,
instead of performing theil' 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 \Vas n.rst wrecked there. The ,Virginia Com-
pany, pleased with the account they had received of these
islands, c1aimed them by the title of n.rst discoverers, and
immediately afterwards sold their right to 120 persons,
who obtained a chartel' in ]612 from King James, and
cornmenced the settlement of their new purchase. In
Hi19, when the beauty and fertility of the island had be-
come well known in England, Ca,ptain 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 deerned it expedient to introduce a
House of Assembly. 'rhe 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.


The 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, ol'any 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
Terminer, General Gaol Delivery, and Assíze in EngIand,"
and is held at the town of Hamilton by a chief justice and
one 01' two, but not more, assistant justices.


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 agl'eeable to the
rules of practice established in the common law courts of
W estminster~hall. An appeal from this court líes by writ
of error to


The Court 01 Error,


Consisting of the Governor and Council, or 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 or demands
laid exceed .f500 currency, an appeal líes from the Court
of Error to the King in Counci\.


This court may make rules of practice merely for writs
of error, and agreeable to the laws 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
Sessións; 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 Islallds. (2)


(2) Howard's Laws oí the Colooies, vol. i. p. 363,364.




THE BERMUDAS. 391


PARTICULAR LAWS. (3)
3 ANNE.-.!1n Aet for settling Intestates' Estates.-Con-


firmed 3d August, 1704.
AH the goods, chattels, and estates of aH and every per-


son 01' persons of 01' in these islands, dying intestate, shall
be disposed of and distributed by and amongst such per-
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 Aet for the better Settling of Infestates'


Estates.-13th July, 1787.
Administration of intestates' effects in these islands to


be grantable 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 l'epresentatives of deceased chiIdren, other than child
(not being hei1' at law) advanccd by intestate in his life-
time, equal to share belonging to unadvanced children.
Advanced children to share equally with other children,
on bringing the advancement into hotch-pot.


Hei1' to share equally with other chiId1'en notwithstand-
ing land he may have.


If the1'e be no child or rep1'esentative of one, haIf to go
to the widow, and half among next of kin of equal degree,
and thei1' 1'ep1'esentatives, but none among collate1'als afte1'
brothe1's' and sisters' children.


If no wife, the whole to go to the children if there be
any, otherwise to the next of kin.


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


If intestate Ieave no father, wife, 01' children, his mother,
b1'others, and siste1's to share his esta te equally.


Estate of intestate not to be distributed till one yea1'
afte1' his death, and parties participating therein to give
bond for l'efunding their saIeable part, to enable adminis-


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




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


Governor may grant administration cum testamento an-
nexo as heretofore.
6 ANNE.-An Act J01' Quietillg Estates ((nd preventing


. Law Suits.-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 thcn the said lands, &c. so held shaU be ac-


, counted a good and sufficient right and title to them and
their heirs fol' ever, and that all persons not claiming and
prosecuting the same eflectually in some proper comt of
record in these islands, wíthin the time limited, shaU be
uttcrly excluded from all claim, any law, statute 01' ol'di-
nance to the contrary nbtwithstanc1ing; nevertheless, the
truc intent and meaning hereof ¡s, that nothing hel'eín con-
tained shall fol' the futme extend 01' be construed to
hinder any person 01' persons who shall have any daim 01'
title, in reversion 01' remaider, to any lands, &c. within
these islands; but that aH such persons may claim 01'
bring his 01' their suít 01' action, and prosecute the same
at any time within twenty years from the cause of action
01' title accrllcd, and for want of su eh claim 01' prosecution
to effect in these islands, to be utterIy c1isabled and barred
for ever.


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


sufficicllt to pass the Real Estates qf Women under Co-
verture.-~9Zd May, 1779.
AH wills, deeds, 01' other conveyances heretofore made


and executed by any woman under coverture, for valuable




THE BERMUDAS. 393
consideration, fol' the passing of any lands 01' tenements
in these islands, shall be dccmed and are hereby declal'ed
to be as good and sufficient fol' the conveying of such
lands and tenements, to the gl'antees 01' devisees in sueh
deeds 01' wills named, as if su eh woman had not been un-
del' covel'ture; unless it can be made clearly to appeal'
that sueh dceds 01' wills were exeeuted contl'al'y to the will
and desil'e of the feme coverts who executed the same.


Any deeds 01' othel' eonveyances exeeuted by any wo-
men undel' covel'ture, and their husbands, for any lands
01' tenements in these islands, shall be as suffieient and
effectual fol' the eonveying amI assuring such lands 01' te-
nements to the grantees in such deeds 01' conveyances
named, as if such women had not be en under eovertUl'e :
Provided that the woman executing such deeds, &c.,
being fol' that purpose pl'ivily examined by the Chief
Justiee of the Courts of Common PIeas, King's Bench,
and Assize, et) for the time being, do eonfess that she
executed such deeds, &c. voIuntarily, and without the feal',
threat, 01' compulsioll of he!' husband, and a eertificate of
such confession, undel' the hand aml seal of sueh chief
justice, be indorsed on the back of such deeds, &c., and
that sueh deeds, &c. be recorded in the secretary's offiee
,of these islands within six calendar months next after the
execution thereof.


43 GEO, S.-An Act in Addition to an Act intituled " An
Act ilírecting ml/at Conveyances shall be sujficient lo
pass the Real Bstates 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 acknowledgmeJ;lt of
any feme covert who may have exeeuted with her husband
any deed for passing her real estate, such aeknowledg.
ment to be indorsed on, 01' annexed to such deed, under
the hand and seal of the eommissioner.


Any deed made by a feme covert of her realty, and
aeknowledged by her before the ehief, 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 COIllmissioller, see 43 Geo. 3.




394 THE BERMUDAS.


~~ GEO. :3.-An Act as wellfor the Lirnitation of certain
Personal Actions and avoiding Suits, asfor the Arnend-
ment of the Law and the better Advancernent of Jus-
tide.-30th March, 178Q.
AH warranties made by any tenant for Jife of any lands,


&c., the same descending or coming to any pel'son in re-
version 01' remaindel', shall be void and of noneeffect j
and likewise aH 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 ~eir.
Q6 GEO. 3.-An Act to prevent Frauds and Abuses in


Mortgages, or otlter conditional Conveyances qf Pro-
perty.-lOth May, 1786.
AH 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 01' 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 mOl'tgage, &c., in such
manner as hereinbefore directed, shall be deemed the first
mortgagee of such property, and recover the sum 01' 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 registel'cd in the said
secl'etary's office, in the mannel' before dil'ected.


The secretary fol' the time being, 01' his deputy, shall,
when required, register in a book fol' that purpose to be
kept, the substance and contents of any mortgage, &c. in
the manner hel'cinbeforc dil'ected, together with the time
when such report shall be to him made.
~6 GEO. 3.-An Actfor the betier Recovery qf Debts due


on Prorniss01'y Notes, and¡ the Assigninent 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
or assignees, indorsee 01' indorsees, of such bond, &c., by
virtue of such assignment 01' indol'sement, shall have law-
fui power to commence and prosecute any suit at law, in
his or their own name 01' names, fol' the reeovery of any
debt due by such bond, &c., as the first obligee might or
could lawfully do: Provided that in any bond, &c. so
made, assigned, indorsed, or transferred, the plaintiff
shall allow a discount of an demands which the defendant
can prove, either against the plaintiff himself or against
the fi1'st obligee, before 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 Aet deelaring Houses, Lands, Tene-


ments, aná other Hereditaments alld Real Estates, in
tite Island of Berrituda, io be su/deet 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 Chancel'y may empower the executor 01' adminis-
trator to seU an 01' sufticicnt part of deceased's real estate
(widow's düwcr excepted) to pay his debts, and such exe-
cutor 01' administrator 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.


!29 GEO. 3.-An Aet to enable the Holders of Small Pm'-
eels 01' Land witltin the Bermuda Islands, in I'ee 'Pail,
to alter the same to Fee Simple, and directing the
1\Jode ofdoing tite 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 l'equisites prescribed by the 19 Geo. 3, ante, p.
392.
60 GEO. 3.-dn det lor the Relief 01 lnsolvent Per-


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 fol' theil'
debts.


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


(5) Thisactwasforthereliefofper- montbs previous to December 2d
sons who were upon, and fol' eighteen 1819, in prison.




( 397 )


THE CANADAS.


-


THIS country líes between the 45th and 52d degrees of
north latitude, and the 63d and 81st of west longitud e
from Greenwieh. The territory of Hudson's Bay or
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 i8
formed partly by New Brunswiek and partIy by a portion
of the territory of the United States, viz. the district of
Maine, thepl'ovince ofNew Hampshire, the state ofVer-
mont, and that of New York. The western boundary
was settled by the Aet of Parliament of 1791, dividing
the provinee of Quebee. The line running between the
provinees of Uppel' and Lower Canada lS by that aet di-
reeted to eommence "at a stone boundary on the north
bank of the lake St. Franeis, at the Cove oi' Pointe au
Baudette, in the limit between the township of Laneaster
and the seignory of New Longueil, then aIong the north-
ern boundary of the seignory of Vaudreuil running north
twenty-five degrees east until it strikes the Ottawa rivel',
to aseend the said river into the lake Temiseaming, and
from the head of the said lake by a line drawn due nort11
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. EneyIopredia Britannica.


The boundary line between the province of Uppel'
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, diseovered the eountries si-
tuate on the south-west of the St. Lawrence. The Eng-




398 THE CANADAS.
lish, however, did not make any use of the discovery, but
the Fl'ench began to fish fol' 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 hel' 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 faiIed most miserabIy. About 1605 Quebec was
built, and from that time the settIements went on increas-
ing. In 16929 Canada was taken by the English, but was
then heId in so little estimation as to be returned to the
Fl'ench 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 fl'om tbe King.


In 1759 it was conquered by General ,V olfe. By the
second article of the capituIation of Quebec, dated 18th
Septembel', 1759, the inhabitants wel'e to be maintained
in the possession of their houses, goods, effects, and pri-
vileges. The sixth article guaranteed the free exel'cise
of the Catholic reIigion. By the twenty-seventh article
of the capitulation of Montreal and the province of Ca-
nada, the free exercise of the CathoIic religion was
guaranteed; and tbe forty-sixth article secured aH 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, un del' 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 proclamation, the objects of which
were these. Both by the capitulation and by the treaty
of Paris the inhábitants 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,
calle u the Quebec Act. 'rhe 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 Pal'liament, whieh divided Ca-
nada into the two provinces of U pper and Lower Canada,
conferred on the people of both provinces their present
representative governments. Mr. Pitt statcd, on moving
for leave to introduce the bill, that its object was "to put
an end to the eompctition betwcen the old Freneh inhabi-
tants and the new settlers from Hritain 01' Hritish colonies,
whieh had occasioned the disputes and uncertainties re-
specting law, &e." 'rhe legislative body was to be eom-
posed of the Governor, the Legislative Council, and the
House of Assembly. The administrative body eonsisted
of the Gove1'nor amI an Exeeutive Counci!. 'rhe Execu-
tivc Couneil of Lowc1' Canada is composed of twelve
members. (1) 'rhe Legislative Councíl is composed of
thirty-three members, who are appointed by the Gover-
nor.-Report of Seleet 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 provine e of Lower Canada was dividcd into
twenty-one eounties, and the number of membe1's to be
returned was fixed at fifty. The qualifieation rcquired


(1) Tbis statement i. in part taken
from Mr. Bouchette's book, lbe mostre-
cent work on Canada, in which the dc-
tails oí tbe forru of government in that
provinee are refereed too The Alma-
nack for Lower Canada, for the year
1828, disagrees from Mr. Bouchette
as to numbers, in tbis and one or
two olher instances. The Alma-
nack gi"es a li,t of the mcmbcrs,
who amount only to eleven, including
the Lord Chief J ustiee of lhe pro-
vinee and the Lord Bishop of Qlleuec,
bath of whum appear to holel seats in
the CouIlcil in virtue of their re'pec-
tive afliees. The li,t of names of lhe
members af (he Legislative COl'ncil,


in like manner, amount only to twenty-
seven, including the Lord Chief Jus-
tice oi the Provinee, wbo is Speaker
01' the Couneil, and the Lord Bishop
of Quebec. The list of lhe members
of tbe HOllse of Assembly of tbe
Lower Province contains the names of
fifty pefsons. Tbe same Almanack
gives the names of seven members of
the Execulive Couneil for Upper Ca-
nada, of twenty members of lhe Le-
gislative Cnunci!, and of forty-seven
members of the HOllse of Assembly
lhere. The numbcr of representa-
tives fUf Lower Canada has sinee been
altered by Act 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·
oflO.-Bouchette, 1 to j24.


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


On the 7th of lVlarch, 1820, was passed an Act of the
Assembly of Upper Canada, reciting that from the rapid
increase of the population of the province the number of
representatives was too limited, and enacting that in fu-
ture " each and every county was formed and organized,
01' which shall 01' may hcreafter be formed, the population
of which shall amount to 1000 souls, 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 held,
containing a population of 1000, shall likewise be repre-
sented by one member."-Report of the Select Commit-
tee on the Civil Government of Canada, 2Zd July, 1828.
House of Commons' Papers, 569.


AHthe judges are appointed by the Governor. (2) Thc
shcriff is an officer of the court removablc 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 thc provin'Ce, to appoint and remove the speakel's
of the Legislative Councils of such provinces respectiveIy.


AH questions before the Legislative Council and Assem-
bly are determined by a majority of the persons present;
and if they be equally divided in opinion, then the speaker
oI tbe COllnciJ or oI tbe AssembJy, as it may be, JJas 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) Qllery, is no! this a mistal,e?
The appuintment lllay in form be under
his warrant, but the higher judicial


officers at least are believed to receive
their appointments from home. This is
the· case at least in the otber colonies.




THE CANADAS. 401
provinces, is presented for His Majesty's assent to the
Governor, he must, according to his discretion, but sub-
jict to the pl'Ovision 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 lVIa-
jesty's assent from such bill, 01' that he reserves such bill
fOl" tlle signification of His Majesty's pIe asure thereon.


And no bill which is reserved fol' 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 proclamation, that such bill has been
laid 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 ;
und a duplicate of it, <luly attested, is delivel'ed to the
propel' 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 yeal'S after it is presented for
His Majesty's assent to the Governor, it has no force
whatever. (8)


COURTS OF LOWER CANADA.


The judicial estahlishments of the colon y are few and
simple in theil' construction.


At both Quebec and Montreal there is a separate inde-
pendent court,-the fil'st, the Court of King's Bench fol'
the district of Quebec, the second, thEl"'Court of King's
Bench for the district of Montreal. Both these courts
have a criminal and a civil side. There is also an Admi-
ralty Court, in which a single judge presides. He is
gene rally one of the judges of the Court of King's Bench.
At Three Rivers there is a Provincial Court, over which
a single jlldge also presides, and Gaspé and St. Francis
possess each a court of the same description. From all
these COUl'ts, except the Admiralty Court, there is an ap-
peal to a Court of Appeals at Quebec, composed of the


(3) Howal'cl'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 membel's of tbe
Executive Council, the Chief Justice of the Province, and
the Chief Justice of Montreal j any nve of whom, the
judges of the court in which the judgment appealed from
has been given excepted, form a court.


The Court qf 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 law officel's of the crown are the Procureur du Roi,
the Solicitor-General, and the Advocate-GeneraJ.


The COllrt of King's Bench at Montreal consists of a
Chief Justicc of thc Court of King's Bench for the district
of Montreal, and of three other judges.


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


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


There are similar courts for the lower district of Gaspé
and fol' the lowel' distl'ict of Sto Franc;ois, each pl'esided
over by one provincial judge.


Court qf Vice-Admiralty.
This court is held before one jlldge, who Ís at present


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


Coroner8.
There are three coroners, one fol' the district of Que-


bec, another fol' that of Montreal, ancl a thírd for that of
Three Rivel's. Their mode of proceeding is ~imilar to
that adopted in England. ~


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


Three Rivers, and at Gaspé. ~




THE CANA DAS. 403


Salaries of Public OffiCet'8.
From a papel' pl'inted by the House oi' Commons in the


year 1830, (House of Commons' Papers, No. 73,) it ap-
pears that in 18:t9 tlle Lowel' Canada Assembly voted the
following 5ums 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'IOO 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 Moníreal
.[1100; six Puisne Judges (three at Quebec and three at
Montreal) ~900 each; and three Provincial Judges 1'600
each. 'rhe 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 Solici-
tor-General 1,':200; the Advocate-General ~~OO; the
Coronel' at Quebec ,[100; the Coronel'. at Montreal
1'100; the Coronel' at Three Rivers .[50; the Chairman
of the Quarter Sessions at Quebec 1'500; the Chail'man
of the Quarter Sessions at Montreal .i'500; the Chair-
man of the Quartel' 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
Canada appear, from the aets of the province, to be a
Court of King's Bench, a Court of Assize for each dis-
triet, a Court of AppeaI, a Distriet Court for each dis-
triet, a Court of Quarter Sessions fol' each district, some
petty Courts of Requests, a Comt of Pl'obate, and a
Surrogate Coul't for each district; there is also a Comt of
Chaneéry, but the laws give no information respecting


(4) This would shew J.\Ilr, Bou-
chette's staternen! as to the numoer of
the Council to be mistaken. 'fhe
Lord Chief .Iustiee of, the provinee
and the Lord Bíshop of Quebec, who
sit in eouneil in virtue of thei!' office,
would of course receive no salary on
that account, and tbere would tIJen
remain, as stated in the Alrnanack,
nine ordinary members.


(5) In the Canada Alrnanack, the
Speaker 01' the Legislative Council is
stated to he the Lord Chief .I ustice of
the province. In the most recen!
charter. of J ustice for otber colonies
the ehief justice o,' any puisne judge
is furbidden to accept any othe .. ofliee,
and his acceptanee, it is decla"ed, .hall
vacale bis ofliee of ehicf justice or
puisne judgc.
DD~




404 THE CAN ADAS.
that, nor indeed any other courts than those which have
be en just enumel'ated.-HoW81'd, vol. ii. p. 14.


Court 01 King's Benclt.


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 an
manner of actions 01" suits, as well criminal as civil, real,
personal, and mixed, arising, happening, 01' being within
the province; and is áuthorized to p1'oceed in ·such ac-
tions, causes, 01' suits, by such process and course as will
tend to justice and despatch, to determine the same, and
to hear and determine aH issues at law, and by a jury of
tweIve men determine all issues of fact that may be joined
in any such action, cause, 01' suit, and judgments thereon
give, and execution thereon awaru, in as fun and ample
manner as may be done by the Courts of King's Bench,
Common PIeas, 01', in matters which regard the King's
revenue, by the Court of Exchequer in EngIand."


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 usuaHy resides;
and the pe1'iods for its sittings are during the tour terms
in each year, viz. (7) HiIal'y 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 Apl'il 16th aneI ends on the Sa-
turday in the ensuing week; Tl'inity Term, which como
menees on the first Monday in July and ends on the Sa~
tun!ay of the ensuing week; and Michaelmas Term,
which commences on the 61'st Monday in November and
ends on the Satu1'day of the next ensuing week. Where
the eourt has good reason to believe that there will not
be suffieient business to require its daily attendance
thl'oughout te1'm, it may adjourn 011 any rcturl1 day to the
next immediate l'eturn day.-2 Howard, 14, 15.


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




THE CANADAS. 405


Courts of Assize.
The Governor may, between Hilary ana Easter ana


between Trinity ana Michaelmas Terms, issue commis-
sions of Assize ana 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 Appeal.
The Governor, Lieutenant-Governor, 01' person admi-


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


An appeallies to this court from all jlldgments given in
the Court of King's Beneh, in an cases where the matter
of controversy exeeeds ~100, 01' l'elates to the taking of
any annual 01' other rent, customary 01' other duty, fee,
01' any other such like demand of a general 01' Pllblic na-
ture affecting future rights, of what value 01' amollnt
soevel' the same may be, upon proper security being given
by the applieant that he will effectually prosecute the ap-
peal and answer the condemnation, and also pay su eh
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 1'ent, customary 01' other duty 01'
fee, 01' any other such demanu of a generaland public
nature affecting future 1'ights, of what value 01' amount
soever the same may be, in whích case an appeal líes to
the King in Conncil, upon proper security being given by
the appellant effectually to prosecute his appeal anu an·




406 . THE CANADAS.
swer the condemnation, amI to pay such costs and da-
mages as shall be awal'ded 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 Buch
appeal to the King in Council.-~ Howard, 15, 16.


District Courts.
In each distl'ict within the province there is a Court of


Record called "'rile District Court of ---," which is
held before one judge or more, appointed under the great
sealof the province. They hold pIeas from the value of
40s. to .fU>, and when the amount is liquidated and eer-
tain to ~40; and also in a11 matters of tort respecting per-


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


They commenee their sittings on tite 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 eourt is styled "Thc Court of Pr6bate of the


Province of Upper Canada," (8) and has full power and
authority to issue process and hoM cognizance of all mat-
ters l'elative to the gl'unting oi' probates, and committing
letters of admiuistration ; and al 50 to grant probates of
wills and commit lettcl's oi' administration oi' the goods of
persons dying intestate, having personal estates, rights,
and credits within the province.


The person administering the government of the pro-
vince presides in the court "to hear, ~ive order, deeree,
01' pronounce judgment in all questtons, causes, 01' suits
that may be brought befol'e him relative to the matters
aforesaid, and that fol' such purposes, he may from time
to time, when he shall be so disposed, call such person 01'
persons as he shall think propel' to be assessor or asses-
SOr s with him."-2 Howard, 16.


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




THE CANA DAS. 407


Surrogate Courls.
Eaeh distriet of the provine e has also a Surrogate


Court for the purpose of granting probates of wills and
letters of administration of the goods of persons dying in-
testa te, 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 eredits to the amount of .P5 in any distriet other than
wbere be usually resided at his gecease,or wben he lea ves
sueh boná notabilia in two or more distriets, then the
Court of Probate alone has jurisd.ietion over sueh pro-
perty.


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


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


Attorney and Solicitor-General. In tbis province too
there is an offieer 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 eases refel'red to him by the court, or w hether
he pedorms 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-
naek.


Justices o/ tlle Peace.
The members of the council are justiees of the peace


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




TItE CANADAS.


Barristers and AUornies.
Pel'sons called to the bar oí any superior court (not


having mel'ely local jurisdiction) in England, Scotland, 01'
Ireland, 01' in any British pl'ovince in N orth America, in
which the same privi1ege is extended to Upper Canada, on
producing sufficient evidence thereof and of good chamc-
ter, to the satisfaction of the I,aw Society there, may be
c.alled to the bar. And no person is admissible to prac-
tise in the Court of King's Bench as an attorney, unless
he have pl'eviously served under articles for n.ve years
with sorne practising attomey in the province.


Ecclesiasdcal Estáblishments.
The ecclesiastical 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 Parliament which extend to the colonies,
and the laws of France as they existed at the conquest in
1759. The criminal Iaw is the same as in England, and
is administered in the same manner.


Both the civil and criminal Iaws of Upper Canada are
the same as in EngIand, and are administered in the same
way and by the same functionaries.


The tenare upon which lands are held by the seigncurs
0\' lords in Lower Canada is feudal; their undertenants
hoId of them somewhat in the way in which copyhoIds
are heId in EngIand, 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 of the clergy.-The Canadas as they now are, !!Y
a late Resident.


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


(9) See ullte, p. :3 to 16, the remarks on the general topie how far the colo-
nies are subjeet to tbe la"'8 of the motller country.




THE CANADAS. 409
liament, thel'e should be a direction that the Iaws 01' ordi-
nances passed in any colony should not be "repugnant to
the laws of England, but as near as may be agreeabIe
thereto." The peculiar circumstances of Lower Canada,
where the great body of a Iarge population had be en ac-
customed and had become attached to other Iaws, re-
quired a departure from tbis rule, at Ieast with respect to
the tenure on which the inhabitants of that province heId
their lands. Several Acts of Parliament have been passed
recognizing this exception to the general rule. (1) Upon
tbese acts doubts have arisen, and fol' the especial pur-
pose of quieting those doubts tbe act of 1 Wm. 4, c. QO,
was passed. As that act recites the formel' acts and the
doubts that have been entertained upon them, as it will
be a sort of constitutional charter for tbe colony, and as
it is not very lengthy, it has been thought advisable to
insert it here. (Q)


(1) See, 011 this suLject, ante, ~6,
alld note.


(2) 1 \Vm. 4, c. 20.-AI1 Aet to
explain and amend the Laws relating
lo Lands holden in Free and Com-
mon Soecage in the Provinee of Lower
Canada.-30th Mareh, 183l.


Whereas, by an 3et made in the
tlJirty-first year of the reign of His
Majesty King George the Third, inti-
tulcd, An Act to repealcertain parts of
an aet 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-
vince of Quehec in N orth Ameriea,
and to make furtber provision for the
government of Ibe provinee," it was,
amongst otber things, enacled, that in
every case where lands should be
thereafter granted within the provinee
of Lower Canada, and where the
granlee thereof slJould desire the same
to be'granted in free and common soc-
cage, the same should be so granted,
hut sllhjeet, nevertheless, to su eh al-
terations, with respeet to the nature
and consequences of such tenure of
free and common soccage, as might be
established by any law or laws which
might be made I>y Bis Majesty, his
heirs or suereSSOIS, by and with the
advice and consent of his or their


Privy Council: And whereas, by an
act passed in the sixth yearof his lale
Majesty Kinr, George the Fourtb, in-
li tuled, "An A et to provide for the
extinction of feudal and siguiorial
rig h Is and burdens on lands held a
titre de jiej, and a titre de CCn!, in ¡he
provinee of Lower Canada, and for
the gradual conversion of thase te-
nures into the tcnure of free and eom-
mon soceage, and for other purposes
relating to the said province," after
reeiting that doubts had arisen whe-
ther Iands grallted in the saiel pra-
vinee of Lower Canada by his said
late l\Iajesty King George the Fourth,
or by any.of his royal predecessors, to
be holden III free andeammon soecage,
would be held by the owners thereof,
or would subsequently pass lo other
persons accord ing to the rules of de.
scent and alienation in force in Eng-
land, or according to such rules as
were eslablished by the aneient laws
of the said province, ror the d~scent
and alienation of land situate therein,
it was thereby declared and enacted,
that alllands within the said province
of Lower Canada which had thereto-
fore been granted hy his said lale
Majesty, his heil-s, and suceessors, to
any person or persons, their heirs or
assigns, to be halden 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-
vermrtent 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 a~d 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 becn 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, or which should or
might thereafter be so granted by his
said l\Iajesty, his heirs, and succes-
sors, to any person or persons, their
heirs, and assig'ns, held,¡granted, bar-
gaiucd, sold, aliened, eonveyed, and
disposed of, and might and should
pass by deseent, in such manner and
form, and upon and Iluder such rules
and restrictions, as are by the law of
England established and iu force in
reference to the grant, bargain, sale,
alienation, conveyance, disposal, and
deseent of Iands holden by the like
tenure therein situate, or to the dower
or olber rights of married women in
such lands, and not otherwise, any
law, custom, or usage to the contraly
in anywise notwithstanding; and it
was thereby provided !hat Ilotbing
therein contained sbould extend to
prevent Ris Majesty, witb tbe adviee
and consent of the Legislative Coun-
eil and Assembly of the said province
of Lower Canada, from making and
enacling any sncb laws or statntes as
might be necessary for the belter
adapting the before mentioned rules
of the law of England, or any of
them, to the local eireumstances of
the said provinee of Lower Canada
and the inhabitants thereof. A nd
whereas doubts have arisen how far
it is competent to Ris Majesty, with
the advice and eonsent of the said Le-


gislatiye Councíl and Assembly, 10
m ake and enaet any laws or s!atutes
establishing rules respecting the de-
seent of lands so gra¡;¡ted in free and
common soccage as aforesaid, or re-
specting the grant, bargain, sale, alien-
atioll, eonveyanee, Of disposal of such
lands, or respecting the dower or otber
rights of married women in or to such
lands in any case wherein surh rules
are repugnant to or at variance with
the laws of Englaud; and it is expe-
dient that sueh doubts sbould be re-
moved: !.le it therefore enacted, &c.
that it shall and may be lawful for
Ris Majesty, hís heirs, and sueces-
SOIS, to assent to, or to authorize bis
or theír assent lo be given to any bill
or bills which have heretofore been or
which may hereafter be passed by tbe
said Legislative Conneíl and Assem.
bly, for reglllating the deseent, grant,
bargain, sale. alienation, conveyance,
or disposal of any lands whieh are
now, or which may hereafter be holden
in free and eommon soccage within
the said province of Lower Canada,
or for regulating the dower 01' other
righls of mamed women in such
lands, any reptignancy, or supposed
repngnaney 01' any sueh regulations, lo
the law of England, or to any of tba
provisions in the before recited acts of
Parliament or either of them contained
to the contrary notwithstanding.




THE CANADAS. 411
grants should be subject to such alterations, as to the na-
tme 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 foreignel's 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 aH 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. havil1g completed a residence of seven years in the
provmce.


This bill is one of those l'eserved for His Majesty' s
pleasure.-Quebec Mercury, March 31st, 1829.


The author has not been able to learn whether this bill
has been assented to, but most probably it has, fol' there
is nothing in it which cannot be justified by the prece-
dents of acts in other colonies. (See the Colonial Acts of
Jamaica, 35 Charles 2, c. 3, and of Antigua, 1 Anne, 28th
June, 1702.) Indeed, but for the purpose of fixing the
period of 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 colon y where they
reside. By the act of 1 "Vm. 4" sess. 1, c. 54, (1830,) it
is now provided that all persons naturalized by any act
of the Legislative Couneil and Assembly of the pro-
vince of Lower Canada, assented to by His lVIajesty, his
heirs or successol'S, shall hencefol'th be deemed compe-
tent in the law to be summoned to the Legislative Coun-
cí] of thesaid province of Lower Canada, and to vote at
the election of membel's to serve in the Legislative As-
sembly of the said provine e, and to be elected at any such
election. Such bill of naturalization in the pl'ovinee 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 B~shop 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 Comt of Chancery, of which the
Governor is chancellor. The Supreme Comt 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 court, one of the
puisne justices of the supreme comt is the vice-president,
and aH the council are members.


There is a Comt of Vice Admiralty, and a court for
the trial of piracy and offences upon the high seas.
The Iatter court is composed of the chief justice and the
judges of the Supreme Comt; the former is presided
over by a commissioner.


There is aeomt 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 .t500 each. There is a Comt of Com-
mon PIeas in each county of the province. Debts under
cf5 are recovered before magistl'ates, who also take cog-
nizance of breaches of the peace. The laws of England,
and the local Iaws enacted in the Assembly, prevail in the
province.




NEW BRUNSWICK. 413


Regiatration of Deeda and Wills.
~6 Geo.3, c. 3. An Act for the Public Registering of


an Deeds, Conveyances, and Wills, and other incum-
brances which shall be made of, or that may affect any
Lands, Tenements, or Hereditaments within this Pl'O-
vince.


Sect. l. Deeds and wills affecting lands to be registered
at lengfh, or (as to deeds) to be void against subsequent
pUl'chaser 01' mortgagee, whose deeds are first registered,
and as to wills to be void.
5~ Geo. 3, c. ~O. An Act supplemental'y 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 effectualIy secur-
ing the Title ofPurchasers of Real Estates against Clairns
of Dower.


Sect. 1. If grantor in deed ofland live in a foreign state,
the acknowIedgrnent of proof thereof may be had before
a British en voy there, and certified thel'eon 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, or the seal of office
of such chief magistrate. Such acknowledgments or
proofs to be registered with the deeds, pursuant to ~6
Geo.3, c.3.
~. Deeds acknowIedged or proved before any court or


person heretofore 01' hereby authol'ized to take the same,
and duIy registered, deerned ~ffectual without livery of
seis in 01' other ceremony.


Wills.
~6 Geo. 3, C. 11. An Act relating to WilIs, Legacies,


Executors, and Adrninistrators, and fol' the settlement
and distribution of the Estates of Intestates.


Sect. ]. 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' otber
writing, signed before three witncsses decIaring same, 01'
by destruction of the first wilI.


(1) 26 Geo.3, 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, un les s 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 horne 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 Shel'iff in 'his proceedings thereon.


Sect. 1. Real estate liable fol' ownel's' debts, and made
chattels fol' that purpose.


26 Geo. 3, c. IS. An Act fol' l'elief against Abscond-
ing Debtol's.


Sect. 1. Where debtol' 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
freeholdel's to make inventory of such estate, and l'eturn
same to the judge. Made perpetual by 47 Geo.3, c.15.


Frauds and Petjuries.
26 Geo. 3. c. 14. An Act fol' prevention of Frauds


und Perjuries, forprevention ofmany fraudulent practices
which are commonly endeavoured to be upheId by perjury
and subornation of pel'jul'y.


Sect. 1. AH estates and interests in land not in writing,
and signed by the parties making the same, 01' their agents
authol'izcd in writing, to be estates at will onIy.


2. Except Ieases 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


Intere:st.
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 pl'Oportion of county labour.


2. If any such proprietol' be absent, and no person ap-
pear for him in six months after public notice to pay, 01'
do his quota of rates 01' labour, amI he have no sufficient
distress, any three justices of the peace, quorum unus.
ma)' let sufficient of his lands for the pUl'pose; or if no
lessee can be had, may order sheriff to seU the same at auc-
tion, who mayexecute proper conveyances to the pur-
chasel', and put him in possession.


A similar power is vested by 26 Geo. 3, c.45, in the
commissioners of sewers.


Dower.
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 thel'ein by one of the Councí}, 01' a judge of the
Supreme Court, or 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. effectualIy
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 right.


Sect: 1. Married woman absentee may acknowledge
deed to bar dower, if in the United Kingdom, before
a judge of King's Bench, or Common Pleas, or Exche-




416 NEW BRUNSWICK.
quer, 01' Master in Chancery, Ol' 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, amI if in
the United Kingdom by an affidavit, certified un del' 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-
tuIed "An Act for more effectually securing the 'I'itlc of
Purchasers of Real Estate against claims of Dower."


'I'he acknowledgment by a married woman of any deed
wherein the consideration-money does not exceed 1'9200,
may be made before a justice of the peace in New Bruns-
wick, 01' the registrar of deeds in the county where the
premises He.


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 fl'om 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
fol' six months previous to such application, and no
trustees may be appointed till six months after public
notice given according to such acto Made perpetual by
47 Geo.3, c. 15.


Laws of the P1'ovince.
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 beforc the erection of the
Province of N ew Brunswick to be in force in N ew
Brunswick.


'I'his act not to have a retrospective opel'ation.




NEW BRUNSWICK. 417


Estates Tail.
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 registered, bar the entaiJ, 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' suflered a recovery.


2. In conveyances of estates tail by a feme covert, the
acknowledgment thereof, and her examination, must be
taken and certified according to 27 Geo.3, c. 9, 01' 3~
Geo.3, c.2, (see ante, 415.)


lusolvent Debtora.
47 Geo. 3, c.2. An Act fol' the further relief of Debtors


with l'espect tú the Impl'isonment of theil' Persons.
Sect. l. Any cl'editor 01' his executor may declare hilO


consent to the discharge of his debtor in execution, with-
out prejudicillg 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 53° 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 circumference being about
J 50 le agues. It is boun3ed 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 soH on the sea coast not fertile. The
country within land is mountainous, aml abounds with
timber: There are several rivers, which are plentifully
stored with fish, and the island possesses besides abund-
ance of deep bays and many good ports.-Ency. Brit.


N ewfoundJand, like other new-discovered lands in
America, was endeavoured to be settled and improved by
mean:.> of charters granted by the crown. Such charters
were gl'anted at five different times. The fil'st was in
1M8 to Sil' Humphrey Gilbert, who had thereby full
power given him to possess aH lands in NewfoundJand not
in actual possessiol1 of any Christian prince. By virtl1e of
this authol'ity, he in ]583 landed in Sto 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 charter was granted in 1610 by James I.
to the Earl of N orthampton, Sir Francis Bacon, and
several others, by name of the Treasurel' and Company of
Adventurers and Planters of the Cities of London aod
Bristol for the Colony of Newfol1ndland.


Two other charters were granted in like manner, the
first to Sir George Calvert of a tract of land, called the
Province of Avalon, and the second, to the Marql1is 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 Calvel't, had deserted
the plantation, this grant included the province of Avalon,
(se e post, rl. (3), p. 4522.) In these grants the free libel'ty
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 disordel's committed every
year among the fishermen on that coast.


On the 20th of February, 1633, a fifth charter was
granted by tbe Star Chamber to the merchants and
traders of N ewfoundland, laying down certain rules re-
specting the management of the fishery.


In 1650 the Council of State gave to Jolm Treworgay,
a merchant, who was then in the island, a commission to
ordel' affairs there for the best advantage of the state.


After the Restoration, Lord Baltimore obtained orders
in 1660 for the l'estitution of the province of Avalon.


Some application seems to have been made to the go-
vernment for a Governol' fol' the colony, fol' in 1667 peti-
tions from Totness, Plymouth, and Dal'tmouth, 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 suppol't such an ex-
pense. These petitions were supported by evidence. The
objections of the petitioners were adopted, but in order
to regula te 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 captainít 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 detel'mining of causes in Newfound-
land. A speciall'eport was afterwal'ds made on the sub-
ject of sending out a Governor and founding a colony,
and the project was discouraged chiefly on the ground
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 aH the planters to come voluntarilyaway, 01'
else that the western charte1' 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.


Sito John Berry was sent out as commander of the
Jonvoy. He was specially directed to lay before the
council the state 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 undcr the char-
ter was stíll 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-
land became the subject of frequent and earnest discus-
sion, and finally in 17528 a commission was issucd 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 Governo1' and Comman-
der-in-chief in and ove1' ou1' saíd island of Newfound-
land, our fort and gar1'ison at Placentía, and all other
forts and garrisons erected 01' to be erected in that
island. It then gave him authol'ity to administer oaths,
to arpoint justices of the peace, with other necessa1'y
officers and ministers for the better administration of jus-
tic e and keeping the peace :md quiet of the island.~
Reeve's Hist. 352 to 75.


In 1730, it seems, that undel' the authority of this com-
mission Captain Osborne claimed a 1'ight, by the means
of the justices of the peacc 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-Genel'al Y orke, in which
the commission was stated, and his opinion desired upon
it. The Attorney-General(l) reported as follows:-


" 1 have considered the said qureries, 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 aet of the 10 and 11 Wm. 3,
for encouraging the trade to Newfoundland, direets that
it shaIl be a free trade.


"As the justiees of the peaee in Newfoundland are,
by their eommissions, to act aeeording to the laws of Eng-
land, 1 apprehend they ought to have pursued this aet of
Parliament as near as the cireumstanees of the case would
admito


"Neither Captain Osborne nor the justices of the
peace have powe¡' to l'aise any tax fol' l'epairing churches,
01' any othel' public works, except such works fol' whieh
power is given to justices of the pea ce in England to
leyy money by particular acts of Parliament,"


'rhe exercise of the new Goyernor's authority was also
opposed by the western adyenturers, who by themselves
and theil' 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 eftect of superseding the
jurisdiction formerly exercised by the fishing admirals,
and he reported his opinion in favour of the powers
granted to Captain Osbol'ne, whose authol'ity was thus
decIared to be legally established.


N othing material appears l'especting the civil govern-
ment of Newfoundland till the yeal' 1737, when the
Board of Trade lis tened to the representation that had
frequently been made by the Governor, of the inconveni-
ence of sending over to England for trial persons who
had committed capital felonies. The board prepared
a commission to Captain Vanbrugh, containing a cIause
authorizing him to appoint commissioners of oyer and ter-
miner, but the Privy Council, when the commission carne
before them, struck out this authol'ity. 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 tbe 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
Pl'Ovince of Avalon, and of aH the royal jurisdictions and
prerogatives thereto belonging, and that His Majesty
would approve of John Bradstreet, Esq. as Governor
thereof. This claim was reterred by the Board of Trade
to the Attorneyand SoliCitor-General, who, in May, 1734,
reported decidedly against allowing ¡t. (3) The question
whether Newfoundland was une of the plantations, and, as
such, subject to the navigation laws, was afterwards form-
a11y discussed and decidcd in thc 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 hooks 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
¡sland of Ncwfoundland, but separated fl'Om it, and an-
nexed to Canada by the Quebec Act, 14 Geo.3, c. 83.


In the year 1765 a Court of Vice-Admil'alty was first
placed at Sto John'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 N ew Hamp-
shire, "here lands originally gl'anted
011 conditioll of being settled and
planted, \Vere resume.f bv the erown
on tbe non performance o"f the cOlldi-
tion. Attorney and Solicitor-Genel'al
Ryder and Murray reportcd (1 Chal.
Opill. 150,) that tlley were c1early of
opinion tbat the erown lIIigh t resume
Ih~ lands granted on conditioll oE


settling in three years, where tllere
had in fael been no settlement.
MI'. "'est had ill 1723, inlike man-
Il€f repOl'tcd, that "it was a maxim
of law that a title to the possession
01' lands in the coJonics mus! neees-
sarily be supporled by an actual cul-
ture and plantiug, and that COllse-
quently the neglect of the one \Vonld
cxtinguish the other." 2 Chal. Opino
4,1.


(4) Reeve'sHist. 73.




¿¡EWFOUNDLAND.' 4~3
year. After the end of that period anothel' aet in 1792
was proposed, making some alterations in the method pre-
scribed by the formel' aet. This latter sta tute was also
to continue only fol' one year. Other statutes were after-
wards passed, hut that under which Newfoundland is at
present governed, is the 5 Geo. 4, c.67, under the autho-
rity of which its present chartel' 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.


GEORG E the FonlTH, by the grace of God, of the United Kíngdom of
Great Britain and Ireland King, Defender of the Faith, and so fortb.
To aH 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 beUer administration of Justice in Newfoundland, and for other
purposes," it is (amongst other things) enacted, that it shall and may
be lawful for us by our 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 Newfdundland." 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 districts in which
the said colony may be so divided as in the said act mentioned. And
it is thereby further enacted, that it shall be lawful for us, our heir8
and successors, by such charler 01' letters-palent as aforesaid, 01' by any
order 01' orders lo be thereafter issued by and with lhe ad vice of our or
their Privy Council, to make and prescribe, or lo authorize and em-
power the said Supreme Court of Newloundland, under sllch limila-
tions as we shall deem proper, lo make and prescribe such rules and
orders touching and concerning the forms and manner of proceeding in




4·24 NEWFOUKDLAND-CIIARTER OF JUSTICE.
¡he said Supreme Court and Circuit Courts respectively, and the prac-
tice and pleadings upon all indictments, informations, actions, suits, and
other matters to be therein brought; or touching 01' concerning the
appointing of commissioners to take bai! and examine wilnesses; the
taking examinations of wilnesses de bene esse, and alJowing the same as
evidence; the granting of proba tes 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 fol' the trial of crimes and
misdemeanors in the said Circuit Courts j the process of the said
court, and the mode of execnting the same; the empannelling of juries ;
the admission of barristers, attornies, and solicitors; the fees, poundage,
or perquisites to be lawfully demanded by any officer, attorney, 01' soli-
citor in the said courts respectively; and aU other matters and things
whatsoever touching the practice 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 su eh rule~ and orders from time to time to alter,
amend, or revoke, as to us, our heirs and successors shall seem reqnisite.
Aud it is thereby fnrther enacted, thal il shall and may be lawful for us
by our said charter or letters-patent to allow any person or persons
feeling aggrieved by any judgment, decree, order, 01' sentence of the
said Supreme Court, to appeal therefrom to us in conncil in such man-
ner, within such time, and under and subject to such rules,regulations,
and limitations as we by such charter or letters-patent shall appoint
and directo Now K"OW YE, that we, upon fuU consideration of the
premises and of our especial grace, certain knowledge, and mere mo-
tion, havp, in pursuance and by virtue of the said Act of Parliament,
thought Jit to grant, direet, and appoint, and by thes!' presents do ac o
cordingly grant, direct, and appoint, that there shaU be within our said
colony of N ewfonndland a court, which shaU be called "The Supreme
Court of Newfoundland." And we do hereby create, erect, and consti-
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 gil"e and grant to our said Clrief Judge rank and precedence
aboye and before all OUr subjects whomsoever within the colony 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 an such persons as by ]aw
or usage take place in England before OUT 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 preceden ce within our said colony, and the
islands, territories, and places dependent thereupon, next after our
said Chief Jndge, lhe said Assistant Judges takingprecedence between
themselves according to the priority of their respective appointments lo




NEWFOUNDLAND-CHARTlm OF JUSTICE. 4125
the said office, or where they may he hoth appointed al the same time,
then according to their seniority as barristers. And we do further
grant, ordain, and appoint, Ihat the said Supreme Court of Newfound-
land shall have and use, as occasion may require, a seal hearing a de-
vice and impression of our royal arms with in an exergue or label sur-
rounding the same, with this inscription, "The Seal of the Supreme
Courl of Newfoundland." And we do hereby grant, ordain, and ap-
poin!, that the said seal shall he delivered lo and kept in the custody of
lhe said Chief Judge. And we do further gran!, ordain, and declare,
thal the said Chief J udge and Assis!ant J udges, so long as they shall
hold Iheir respective offices, shall be entitled to have and receive the
following salaries, that is to say, our said Chief Judge a salary of i1200
sterling money by the year, and each of our said Assistant Judges
a salary of i700 like sterling money by the year. And our Governor
or acting Governor for Ihe time being of the said colony is hereby
directed and required lo cause such salary lo be paid to lhe said Chief
Judge and Assistant Judges out of the revenue of the said colony, by
four quarterly payments at the four most usual days of payment in the
year. And we do further granl, ordain, ami declare, that the said sa-
Jary shall commence and take place in respect to any person who sltall
be resident in Great Britain or Ireland at lhe time of his appointment,
upon and from the day on which any such person shall thereupon em-
bark or depart from Great Eritain 01' Ireland for N ewfoundland to take
upon him the execution of the said oflice; and that the salary of any
such Chief J udge 01' Assistant J udge, who shall at the time of his
appointment be resident in Newfoundland afores:tid, shall commence
and take place from and after his taking upon him the execution of
su eh his oflice, and that snch salary shall be in lieu of all fees of office,
perquisites, emoluments, and advantages whatsoever; and that no fee
of offiee, perquisite, emolument, or advantage whatsoever, other than
and except the said salary, shall be accepted, received, or taken by su eh
Chief Judge or Assistant Judges in any manner or on any account or
pretence whatsoever. Provided nevertheless, that it shall be lawful fol'
the said Chief Judge or Assistant Judges to occupy and inhabit any
oflicial house 01' residence within the said colon y of Newfoundland,
which hath been or may hereafter be provided for their or any of their
residen ce and occupalion without paying to us, om heirs and succes-
sor5, any rent for the same, aud without being obliged to repair, up-
hold, or maintain any such house 01' official residence at his own costs
and charges. And we do furthel' 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, 01' performing any
other office or place of profit or emolument, on pain that the acceptance
of any 5uch other offiee or place as aforesaid shall be1 and be deemed




426 NEWFOUNDLAND-CHARTER OF JUSTICE.
in law de jacto an avoidance of the office of such Chief Judge or 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 or place. And we do hereby consti-
tute and appoint our trust y 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 trust y 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 WaUet Des
Barres and John William Molloy being respectively barristers of three
years standing and upwards. And we do hereby grant, direct, and
appoint, that there shaU" be within our said colony of Newfoundland
three Circuit Courts, to be he Id 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 shall be holden by the Chief J udge
or 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 shall be always at liberty to decide which of
the three Circuit Courts shaU be holden by him, and that tbe senior
Assistant Judge shaU 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
officers as to the Chief Judge of the said Supreme Court for the time
being shall from time to time appear to be necessal'y for tbe administra-
tion of justice, and the due e;(ecution of al! the powel's and authorities
which are granted and committed to the said Supreme Court and Cir-
cuit Courts respectively by the said Act of Parliament or by these our
letters-patent. Provided nevertheless, that no office shall be created in
the said courts ur auy of them, unless the Governor ur acting Governor
for the time being of our said colony shall first signify his approbation
thereof to our said Chief Judge for the time being, in writing under
the hand of such Governor or acting Governor as aforesaid. And we
do further ordain and direct, that all persons who shall and may be ap-
pointed to the several offices of Master, Registrar, Accountant-General,
or Proihonotary of the said Supreme Court 01' Circuit Courts in New-
foundland, or to any office in the said COllrts 01' any of them, whereof
the duties shall correspond to those performed by the Master, Registrar,
Accountant-General, or Prothollotary of any or either of our Courts of
Record at Wes!minster shall be so appointed by our heirs and succes.




NEWFOUNDLAND-CHARTER OF JUSTICE. 427
!ors by warrant nnder our or their royal sign manual to hold such their
offices during our or their pleasure; and that all persons who shall and
may be appointed to any other office within the said Supreme Court of
Newfoundland, 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 froln
such their offices by the said Chief J udge upon reasonable and suffi-
cient cause. And we do hereby authorize and empower the said
Supreme Court of Newfoundland to approve, admit, and eurol such
and so many persons having been admitted barristers at law or advo-
cates in Great Britain 01' Ireland, or having been admitted writers,
attornies, or solicitors in one of our Courts at Westminster, Dublin, or
Edinburgh, or having been admitted as proctors in any Ecclesiastical
Court in England, to act as well in the character of barristers and 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 Suprcme Court, subject always
to be removed by the said Supreme Court from theirO station therein
upon reasonable cause. And we do further authorize the said Supreme
Court of Newfouridland to admit and enrol as barristers, advocates,
pl'octors, attornies, 01' solicitors therein, such and so many persons as
may have served a clerkship under artic\es 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
pel'son 01' persons other than the persons aforesaid shall be alJowed to
appear, plead, or act in the said Supl'eme 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, adyocates, writers, attor-
nies, solicitors, and proctors, or of pel'sons 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 shalJ
and is hereby authorized to admit so many other fit and proper per-
son s 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 \Vith regard to the admission of pel'sons 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-
no\' or acting Governor fol' the time being of the said colony of New~




428 NEWFOUNDLAND-CHARTER OF JUSTICE.
foundland shall yearly, on the Monday nex( following the first day of J a-
.nuary in each year, by warrant under his hand and seal, nominate and
appoint some fit and pl'oper person to act as and be the Sheriff for our
said colony of Newfoundland and its de pendencies, (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 Governor
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 folbwing the first day of Janual'y in each year, and uutil
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'eriff, be in like manner appointed amI
sworn in as aforesaid, and shall continue in his office for lhe remaillder
of the year, and until another Sheriff shall be duly appointed and sworn
into the said office. And we do fnrther direct and appoiut, that it shall
anrl may be lawful for the Governor 01' acting Governor of oul' said
colony to renew from year to year the appointment of the same person
as Sheriff for our said colony and itB de pendencies ; and that in select-
iug 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 instructiolls or commands as may from time to time be signified
by us, our heirs or successors, to hirn through one of our or their
Principal Secretal'ies of State. And we do further direet, 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, wilh two good and sufficient
sureties in the sum of f'2000 each, fol' the due and faithful performance
of the duties of such his office, and for the due amI 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 before the Chief Judge or one of the Assist~nt Judges
aforesaid, a wriuen account of all the money by him or by his lawful
deputies reccil'ed during the calendar month last prcceding, and stating
the application (hereof so far as the same may by him or them have
been applied; and also stating the exact balance of su eh monies then
remaining in the possession of himself ol' his said deputies, so far as
the returns received from such deputies enable 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 or Registrar of the said
Supreme Court for the space 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 themsel ves or t!teir sufficient deputies, to be by them appointed and
duly authorized under their respective hands and seals, and for whom
he and they shall be responsible during his or their continuance in such
office, execute, and the said Sheriff by himself or his lawful deputies is
hereby authorized to execllte, the writs, sllmmonses, rules, orders, war-
rants, commands, 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 Sllpreme Court and Circuit Courts re-
spectively; to receive and detain in prison all such persons as shall be
committed to the custody of such Sheriff by the said Supreme Court
and Circllit Courts respectively, or by the Chief Judge or Assistant
Judges or either of them. And we do further direct, order, and ap-
point, that whenever the said Supreme Court or any of the said Circuit
Courts shall direct or award any process against the said Sheriff, or
shall award any process in any cause, malter, or thing wherein the said
Sheriff, on account of his being related to the parties or any of them,
or by reason of any good cause of challenge, which would be allowed
against any Sheriff in England, cannot or ought not by law to execute
the same, then and in every such case the said Supreme Court or the
said Circuit Court, as the case may be, shall name and appoint some·
other fit person to execute und return the same; and the said pro-
cess shall be directed to the person so to be named for that purpose,
and the cause of such special process shall be suggested and ente red
on the records of the court issuing the ,same. Provided always and
we do hereby ordain and declare, that the said Sllpreme Court and the
said Circuit Court shall respectively fix certain limits, beyond which
the said Sheriff shall not be compelled 01' compellable to go in person,
or by his officers or deputies, for the execution of any process of lhe
said courts respectively; and upon occasions where the process of any
of the said courts shall be to be execnted in any place or plaees 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 or persons, and in what
manner, such process shall be execuled, and the terms and condition
which the party at whose instance the same shall be issued shall enler
into, in order to prevent any improper use or abuse of the process of
the said courts; and the said Sheriff shall, and he is hereby required
to grant his special warrant or deputation to such person or persons as




430 NEWFOUNDLAND-'CHARTER OF JUSTICE.
the court making any such order shall direct, fo\' the execution of such
process; ami in that case we direct and declare, that the said Sheriff,
his heirs, exeeutors, or administrators, shall not be responsible or liable
fo\' any act to be done in or in any way respecting the execution of sueh
proeess, under and by virtue of such special warrant; and that any
person or persons being aggrieved under or by vil'tue of sueh speeial
warrant, shall and may seek their remedy under any security wbich
may have been directed to be taken upon the oceasion, aIid which the
eourt issuing sueh 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 court, of
the last wills and téstaments of al! or any of the inhabitants of the said
colony and its dependeneies, and of all other pel'sons who shal! die and
leave personal effeets within the said colon y and its dependeneies, and
to eommit letters of administratlon undel' the seal of the said Supreme.
Court, of the goods, ehattels, credits, and all other effeets whatsoever
of the pel'sons aforesaid who shall die intestate, 01' who shall not have
named an executor resident within the said colony and its depend-
eneies, 01' where the executor being duly eited shall not appear and sue
forth such probate, annexing the will to the said lettel's of administra-
Hon when such persons shall have left a will, and to sequester the
goods, ehattels, credits, and other effects whatsoever of such persons so
dying, in cases al!owed 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 requil'e, to disallow and reject, the accounts
of them in such manner and form as is now used Ol' may be used in the
said diocese of LondoD, and to do all other things whatsoever needful and'
necessary in that behalf. Provided always, and we do hereby authorize
and require the said Supreme Court in such cases as aforesaid, where let-
ters ofadministration shall be committed with lhe will annexed for want of
an exeeulor appearing in due time to sue forth Ihe probate, to reserve in
such letters of administration ful! power and authority to revoke the same,
and to grant probate of the said will to such exeeutor whenever he sha1l
duly appear and sue forth the same. And we do hereby further aulhorize
and require the said Supreme Court ofNewfoundland to grant and commit
sueh letters of administration to any one or 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 lelters of admi-
nistration to be granted by the said Supreme Court shall be limited to
sueh money, goods, chattels, and effects as the deceased person shall be
entitled to within the said colony and ils dependencies. And we do
hereby further enjoin and require that every person to whom such




NEWFOUNDLAND-CHARTER OF JUSTICE. 431
letters of administration shall be committed shaJl befo re the granting
thereof give sufficient security, by bond to be entered into, to ns, our
heirs, and successors, for the paymeut of a competent sum of money,
with one, two, or more able sureties, respect being had in the sum
therein to be conlained and in Ihe ability of the sureties to the value of
the estates, credits, and effects of the deceased, which bond shan be
deposited in the said Supreme Court among the records thereof and
there safely kept, and a copy thereof shan 'be also recorded among the
proceedings of the said Supreme Comt, 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 trne and perfect inventory of an and singular the
goods, credits, and effects of the said deceased which have or sh~ll 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 exhibit or cause to be exhibited into the said Su-
preme Court of Newfoundland at or befo re 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 al any time afterwards shall come to the hands or pos-
session of su eh administralor or lo the hands or possession of any other
person or persons for him, sball well and lruly administer according to
law, and further shaU make or cause lo 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 aU the rest and residne of tite said goods, chattels, credits,
and effects which shaU be found from time to time remaining upon the
said administration accounts, the same being fir,t examined and allowed
of by the said Supreme Court of N ewfoundland, shall and do pay and dis-
pose of in a due course of administration er in such manner as the said
court shall direct, then tbis obligation to be void and of none effeet, or
else to be and remain in full force and virtue." And in case it shall be
necessary to put the said bond in suit for the sake of obtaining the
effect thereof for the benefit of such person or persons as shan appear
to the said Court to be interested therein, such person or persona
from time to time giving satisfactory security fol' paying al\ such costs
as sbaU arise from the said suit or any part thereof, such person or per-
sons shall by order of the said Supreme Court be al\owed to sue tbe
same in tbe name of tbe Attorney-General for the time being of tbe said
colony, and the said bond shall not be sued in any otber manner. And
we do hereby authol'ize and empower tbe said Supreme Court to order
tbat tbe said bond shalI be put in suit in the name of the said Attor-
nel-General. And we further will, order, and require that the said




432 NEWFOU~DLAND-CHARTER OF JUSTICE.
Supreme Court shall fix certain periods when al! persons to whom pro-
bates of wilIs and letlers of administration shall be granted by the said
Supreme Court shall, from time to time, until the effects ofthe deceased
person shall be fully administered, pass their accounts relating thereto
before lhe said court, and in case the effeets of the deeeased shall not be
fully administered within the time for that purpose to he fixed by the
said eourt, then, or at any earlier time, if the said Supreme Comt shal!
see fit so to direet, the person or persons to whom such probate or admi-
nistration shall be granted, shall pay, deposit, and dispose of lhe balance
of money belonging lo lhe estate of lhe deceased then in his, or her, or
their hands, and all money which shall aflerwards come into his, her, or
their hands, and also all precious slones, jewels, bonds, bilis, and secu-
rilies belonging to lhe estate of lhe deceased, in such manner and unto
such persons as the said Supreme Court shall direet for safe eustody,
And we require that the said Supreme Comt 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 or any part thereof,
as occasion shall require, to or for the use of any person or persons,
whether resident or not resident in the said colony and its dependencies,
who may be entilled thereto, or any part thereof, as creditors, legatees, or
next of kin, 01' by any other right or title whatsoever, And we do
hereby, in exercise and in pursuance of the powers in us by the said
Act of Parliament in that behalf vested, authorize and empower the said
Supreme Court of Newfoundland, under such limitations as hereinafter
mentioned, to make and prescribe such rules and orders as may be ex-
pedient touching and concerning the forms and manner of proceeding
in the said Supreme Court and Circuit Courts respectively, and the
practice and pleadings upon all indictments, informations, actions, suits,
and other matters to be therein brought; and touchiug 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 sheritf and his deputies and other ministerial
officers; the summoning of assessors for the trial of crimes and misrle-
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 harristers, attornies and solicitors; the fees, poundage, or per-
quisites to be lawfully demanded by any officer, attorney, or solicitor in
the said courts respectively; and other matters and things whatsoever
touching the practice of the said courts as may he necessary for the
proper conGuct of business therein, and such rules and orders from
time to time to alter, amend, or revoke, as may be requisite; Provided
always, that no such rules 01' orders be in anywise repugnant to tbe




NEWFOUNDLAND-CHARTER OF JUSTICE. 433
said Act of Parliament or this om 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 lhe first
convenient opportunity transmitted through the Governor or acting
Governor of our said colony to us, om heirs, and successors, for the
signification of our or their pleasure respecting the allowance or disal-
lowance thereof: And we do hereby direet, 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,
de cree, order, or sentence of the said Supreme 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 properly or any civil right, amount-
ing to or of the value of ;[500 sterling, the person or persons feeling
aggrieved by any such judgment, decree, order, or sentence of the said
Supreme Court may, within fomleen days next after the same shall have
been pronounced, made, or given, apply to the said Supreme Court, by
petition, for leave to appe;¡1 therefrom to us, our heirs, and successors,
in our 01' their Privy Council, and in case sueh 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 direet that the judgment, decree, order, 01' sentence
appealed from shall be carried into execution, 01' 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 Comt shall direet such judgment, deeree,
order, 01' sentence to be cal'ried into execution, tbe person 01' persolls in
whose favour the same shaU 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'
order, as we, our heirs, and successors shall think lit to make there-
upon; or in case the said Supreme Comt shall direct the execution of
any sueh judgment, decree, order, or sentence 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 sllspen-
sion of any such execution is made, enter into good and sufficient se-
eurity to the said Supreme Court for the due performance of such
judgment 01' order as we, qur h!!irs, Qt successorsshall think fit to make


FF




434, NEWFOUNDLAND-CHARTER OF JUSTICE.
thereupon; and in an cases we will and require that security shaJl also be
given by the party or parties appellant, to the satisfaction of the said
Supreme Court, for the prosecution of the appeal and for the payment
of aJl such costa as may be awarded by us, our heirs, and successors to
the party or parties respondent; and if such last-mentioned security
shall be entered into three months from the date of such petition for
leave to appeal, then and not otherwise the said Supreme Court shall
allow the appeal, and the party or parties appellant shall be at liberty
to prefer and prosecute his, her, or their arpeal to us, our heirs, and
successors, in our or their Privy Council, in such manner and form and
under such rules as are observed in appeals made to us from our plan-
tations or colonies: And we do hereby reserve to ourself, our heirs
and successors, in our 01' their Privy Couucil, fuIl power and authority
upon the humble petition, at any time, of any person or persons feeling
themselves aggrieved by any judgment, decree, order, or sentence of the
said Supreme Court, to refl\se or admit his, her, or their appeal there-
from, upon such terms and upon such limitations, restrictions, and regu-
lations, as we or they shall think lit, and to reform, correct, or vary such
judgment, decree, (}Ider, 01' sentence, as to us or them shall seem meet :
And it is our further will and pleasure that in all cases of appeal
allowed by the said Supreme Court, or by US, our heirs, and successors,
the said Supreme Court shall certify and transmit to us, our heirs, 01'
successors, in our or their Privy Council, a true and exact copy of all
evidence, proceedings, judgments, decrees, sentences, and orders, had
or made in such causes appealed, so far as lhe same have related to the
matter of appeal, such copies being under lhe seal of the said court:
And we do further direet and ordain that the said Supreme Court of
Newfoundland shall in all cases of arpeal to us, our heirs, and succes-
sors, conform to and execute or cause to be executed such judgments
and orders as we, our heirs, and ~uccessors shall think lit to make in
the premises, in such manner as any original judgment, sentence,
decree, decretal order, or otRer order or rule of the said Supreme Court
oí Newfoundland could 01' might have been executed: And we do
hereby strictly charge and command all Governors, Commanders, Ma-
gistrates, Ministers, civil and military, and all our liege subjects within
and belonging to the said colon y, that in the execution of the several
powers, jurisdictions, and authorities, hereby granted, made, givcn, 01'
created, they be aiding and assisting and obedient in all things, as they
will answer the contrary at their peril: Provided al ways, that nothing
in these presents contained, 01' any act which shall be done under the
authol'ity thereof, shall extend 01' be constl'ued to extend to prevent us,
our heirs, and snccessors, as far as we lawfully may, from repealing
these presents or any part thereof, 01' from making such further or other




NEWFOUNDLAND-CHARTER OF JUSTICE. 435
provision, by letters-patent, for the administratiou of justice, civil and
criminal, within the said eolony and the p!aces now or at any time
hereafter to be annexed thereto, as to us, our heirs, and snccessors shall
seem fit, in as fnH and ample a manner as if these presents had not beell
made, these presents or any thing herein contained to the contl'ary not-
withstanding. In witness, &e.


Witness, &e.
Patent dated 19th September, 1825.


NEWFOUNDLAND.-ROYAL INSTRUCTIONS.


-
Instl'uctions lo OUI' trust y andwell-belo'Ved Sil' Thamas Jo1m Cochrane,


Knight, OUI' Gorernar and Commander-in-CMif 01 0111' [sfand of
Newfollndland, 01" in hia abscnce la the Lieuienant-Governol' 01'
qf!icer administering (he government qf OUI' laid Ialandfor the time
beillg. GiL'Cll at 0/11" Court at Sto James's, the 26th day if July,
1832, in the thil'd year if our l'eign.
1. With these our instrnctions you will receive our commlSSlOn


under our great sea! of the U nited Kingdom 01' Great Britain and Ireland
eonstitnting you our Governor and Commander-in-Chief in and over
our said island of Newfonndlaud and its depeudencies. You are
therefore with all convenieut speed to assume and enter upon the
execution of the trust we have reposerl in you. And yon are forthwith
to call togetlJcr the following persons, whom we do hereby appoint to be
members of om Councíl in our said island, any three of whom to be a
quorum: viz. The chief jnstice for the time being of our said island;
the chief officer in command of om land /brces for the time beiDg in
om said island next after our Governor thereof fol' the time being; tIJe
attorney-geneml for the time being of our said island; the collector
or other chief officer of customs for the time being of OUT said iRland ;
the colonial secretary for the time being of our said island, and William
Haly, Esquire.


2. And you are with all dne and usual SOlemllity to cause our said
commission, constitnting you our Governor and Commander-in·Chief
as aforesaid, to be I'ead and published at the first meeting of our said
Council, and shall then take, and also admiuister to each of the
members thel'eor, the several oaths therein required.


3. Yon shall administer or cause to be administered the several oaths
mentioued in our said commission to aH judges, justices and other


FF2




436 NEWFOUNDLAND-ROYAL INSTRUCTIONS.
persons who hold any place of trust or profit in our said island, without
the doing of which you are not to admil any person whatsoever into
any public o{fice, nor suffer those who may have already been admitted
to continue therein.


4. Yon 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 aH such others from time to time as you shall
find convenient for our service to be imparted lo them.


5. You are to permit the members of our said Council lo have and
enjoy freedom of debate, and vote in all affairs of public conccrn that
may be submitted to Iheir consideration in Counci!.


6. And thal we may be always informed of Ihe names and cha-
raclers of persons fit to supply the vacancies in our said Council, you
are from time lo 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 besl quaHfied 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 lo fiJl
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 qnalifications of any members by
you put iuto our said Couucil by the first opportunity after so doing.


8. And iu Ihe choice and nomination- of the members of our said
Council as also of the judges, justices, and other officers, you are
always to take care that they be men of good life, well affected to
om government, of good estates, and abilities suitable to their cmploy-
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 sufficicnt cause, nor without the consent of
the majority of the said Council, signified in Council afier due exami-
natiou 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
Coi.ll1cillor, 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
Councíl, not fit to be communicated to our said Council, you may in
that case suspend sllch membcr without their consent. But you are
thereupon immediately to send to us, through one of om principal
Secretaries of State, an accOllnt of your proceedings therein, together




NEWFOU~DLAND-ROYAL lNSTRUCTIONS. 437
with your reasons al large for such suspension, ane! also your reasons
for not communicating tite same to OUT Council.


10. And wbereas effectual care ougbt to be taken to oblige tite
members of our said Council to a due attendance tberein, and thereby
to prevent tbe inconveniences tbat may happen from the want of a
quorum to transact business as occasion may require, it is our will and
pleasure that if any of tbe members of our said Council shall hereafter
absen! themselves from the said island, and con!inue absent aboye
tbe space of six months togetber witbout leave fl'om you 01' our Com-
mander-in·Chief for the time being first obtained under your 01' bis
hane! or seal, or shalll'emain absent for tbe space of two years succes-
sively witbout leave given them undel' our royal sign manual and
signet, tbeir place 01' places in the saie! Council sball immediately
thereupon become void; and that if any of the members of our said
Council, then residing within our said island, shall hereafter absent
tbemselves when duly summoned without a sufficient cause, ane! shall
persist in such absence after being thereof admonished by you, you
suspend the saíd Councíllors so absenting themselves till our further
will anu. pleasure therein be known, giving immediate notice thereof to
us, through one of our principal Secretaries of State: and we do
hereby will and require tha! 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 OUT aforesaid commission you are authorized
and empowered to summon and cal! GE'neral 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 or townships, 'and 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' counlies, towns or townships; and you are, so soon as you
shall see expedient, to issue writs in our name, directed to the proper
officers in each district or county, town 01' townsbip, directing them to
summon the freeholders and householders thereof, to proceed to the
election of persons to represent them in tbe General Assembly according
to the regulations and directions lo be signified in the proclamation lo
be issued by you as aforesaid.


12. You are to observe in the passing of aH laws, that the style oí
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


pl'etence whatever, give your assent to any law or laws to be passed by
which the number of the Assembly shall be enlarged 01' diminished, the
duration ascertained, the qualifications of the elector s or the elected
nxed 01' altered, or by which any regulations shall be established with
respect thereto, until you shaU have first transmitted unto us, through
one oí our principal Secretaries of State, the draft of such bill or bilis,
and shall have received our royal pleasure tberenpon, unless you take
care in the passing such bill or bilis that a c1anse or clauses be in-
serted therein suspending and deferring the execution thereof until our
wiH and pleasure shall be known thereupon.


14. And you shaU not re-enact any law to which the assent of us or
our royal predecessors has once been refused, without express leave for
tbat purpose first obtained froro us, upon a fuU represenlation by you,
to be made to us through one of our principal Secretaries of State, of
the reason and Decessity for re,.enacting su eh law.


15. And it is om express will and pIe asure, that no 1aw 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 U5
any sum or sums of money by duties of impost, tonnage, or excise, be
made to continue for les s than one whole year; as also that no other
laws whatsoever be marle to continue foc les s than two years, except
only in cases where it may be nece:;sary for sorne unforeseen emergency
to make provision by law for a service in its nature temporary and
contingento


16. You are also, as much as p03sible, to observe in the pas~ing of
all laws, that each different matter be provided for by a different law,
without intermixing in one and the same act such things as have uo
proper relation to each other; and you are more especially to take care
that no clause or c1auses be inserted in, or annexed to, any act which
shall be fureign to what the title of such respective act imports ; and that
no perpetual c1ause 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,
a.\tered, continued, revived, er repealed', be particularly mentioned and
expressed in the enacting parto


17. And you are particularly enjoined not to pass any law, or do any
act, by grant, deed, conveyance, or otherwise, whereby our revenue may
be lessened or impaired without our especialleave 01' command thereon.


18. It is our will afid pleasure that you do not give your assent to
any bill or bilis for raising money by the institution of any public or
private lotteries whatsoever until you shall have first transmitted unto




NEWFOUNDLAND-ROYAL INSTRUCTIONS. 439
US, through one of our principal Secretaríes of State, a draft or drafts
of such bill or bilis, and shall have received our directions thereupon.


19. It is our will and pleasure that you do not, on any pretence
whatever, give your asgent to, or pass any bill or bills in our island
under your government, by which 1he 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 wrthin 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 bil1s, and shaU have
received our royal pleasure thereupon, unless you take care, in the
passing of such bill or bilis, that a clause or c\auses be inserted therein,
suspending and deferring the execution thereof until OUT royal will and
pleasure lihall be known thereupon.


20. It is our further wilI and pleasure tbat yon do not, upon any
pretence whatsoever, give your assent to any bill or bilis that may have
been or shalI 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, original1y granted to or purchased by aliens antece-
dent to naturalization.


21. Whereas great mischiefs have arisen by the frequent passing oí
bills of an unusual and extraordinary nature and importance in the
plantations, which bills remain in force there from the time of enaeting
unti! our pleasure be siguified to the contrary, we do hereby will and
require you not to pass or give your assent to any biU or bilis passed in
the Assembly of an unusual and extraordinary nature and importance,
whereby our prerogative or lhe property of our subjects may be
prejudiced, nor to any bilI or bilIs whereby the trade or shipping of this
kingdom shaU be in anywíse affected, untíl you shall have firsf trans-
mitted Unto US, through one of our principal Secretaries of State, a
draft of such bill or bilIs, and shaH have recei ved our royal pleaS11re
thereupon, unless you take care in the passing any suen bilis as afore-
mentioned that there be a clause inserted therein, suspending and
deferring the execution thereof unti! our pleasure shall be known
concerning the same.


22. You are also to take care that no private aet be passed, whereby
the property of any private person may be affected, in wl\.ich there is
not a saving of the rights of us, our heirs and- successors, all bodies
politie and corporate, and of all other, exeert such as are mentioned in
the said act, and those claiming by, from, and under them; and




440 NEWFOUNDLAND-ROYAL INSTRUCTIONS.
furlher, you shall take care that no such private act be passed withouta
clause suspending the execution thereof until the same shall have
received our royal approbation. It is likewise our 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, befo re any such act sha)) be brougbt
into the Assembly, and tbat a certificate, under your hand, be trans-
mitted witb, and annexed to every such private act, signifying that the
same has passed through all the forms aboye mentioned.


23. You are to take care that in all acts or orders to be passed within
our said island, in any case for levying money or imposing fines and
penalties, express mention be made that Ihe same is granted 01'
reserved to us, our heirs and successor5, for Ihe public uses of the said
island, and the support of the government thereof, as by the said act or
order shall be directed.


24. You are not to suffer any public money whatsoever, whether it be
appropriated lo any particular service or ~t by the act granling the
same, to be issued or disposed of otherwise than:by warrant under your
hand, by and with the consent of the said Counci!. But the Assembly
may nevertlleless be permitted from time to time to view and examine
the accounts of money or value of money disposed of by virtue of laws
made by tbem, as there shall be occasion.


25. You are nol lo permit any clause whatsoever to be inserted in
any law for levying of money, or 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, or our High
Treasurer for the time being; and we do particularly require and
~njoin you, upon pain of our highest displeasure, to take care tbat fair
books of accounts of all receipts and payments of all such money be
duly kept, and copies thereof be transmitted to our Commissioners of
our Treasury, or to our High Treasurer for the time being, and in which
books shall be specified every particular sum raised or 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 rev'enue ofour said island, with the probability of the increase and
diminution of it, under e\'ery head and article thereof.


26. It is our wiU and pleasure that you do in all things conform
yourself to tbe provisions contained in an Act of Parliament passed in
the fourth year of the reign of his late Majesty King George the Third,
intituled, "An Act to prevent paper bilis of credit hereafter to be
issued in any of His Majesty's colonies or plantations in America




NEWFOUNDLAND-ROY AL INSTRucrIONS. 441
from being declared to be a legal tender in payment of money, and to
prevent Ihe legal tender of such bilis as are now subsisting from
being prolonged beyond the periods limited for recalling in and
sillking 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, or pass any act whereby bilis of credit may be
struck or issued in lieu of money, or for payment of money, either to
you, our Governor, or to any person whatsoever, unless a clause be
inserted in such act, declaring that the same shall not take effect until
the said act shall have been approved and confirmed by US, our heirs
or successors.


27. You are to transmit an authenticated and separate copy ofevery
law, statute or ordinance that at any time hereafter shall be made or
enacted within the island under your government, under the public seal,
unto U8, through one of our principal Secretaries of State, within three
Jl1onths, or sooner, after their being enacted, upon pain of our highest
displeasure, and ofthe forfeiture of that year's salary wherein you shall
omit (o send over (he said laws, statutcs and ordinances as aforesaid,
within the time above-mentioned, as also of such other penalty as we
shall please to inflict: hut if it shall harpen 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 or disallowance of the same.


28. And it is our furlher will and pleasure that the copies and
duplicates of an acts that shall be transmitted as aforesaid be fairly
abstracted in the marge~, and there be inserted lhe several dates or
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 oí our principal
Secrelaries of SI ate, upon every acl; that is lo say, whether the same is
productive of a new law, declaratory of a former law, or does repeal a
law then before in being, and you are likewise to send to us, through
oue of our principal Secretaries of Stale, tbe reasons for the passing of
such laws, unless the same do fully appear in the preambles of the said
acts.


29. You are to require the Secretary of the island under your
gOI'erl1lnent, or his deputy for the time being, to furnish you lVith
transcripts of alI such acts and public orders as shall be made from time
to time, together with copies of the journals of the Council, and that all
such copies be fairly abstracted in the margents, to the end lhe same
may be transmitted to us, through one of our principal Secretaries of




442 NEWFOUNDLAND-ROYAL INSTRUCTIONS.
State, whiCh he is duly to perform upon pain of incurring tbe for-
feiture of his office.


30. y ou are also to require from the clerk of the Assembly of the said
island, or other proper officer, transcripts of al! tbe journals and other
proceedings of the said Assembly, and that aH such transcripts be
fairly abstracted in the margents, to the end the same may in like
manner be transmitted as aforesaid.


31. Yon shaIl not appoint any person to be a judge ar justice I)f the
peace without the advice and consent of the majority of the Council of
our said island, signified in Couneil. And it is our further wiU and
pleasure tbat aIl eornmissiolls to be granted by you to any person Of
persons to be judges, justices of the peace, or other necessary officers,
be granted during pleasure only.


32. You shan not suspend any of the judges, justices, or other
officers or ministers, withaut good and sufficient cause, which you shall
signify in the fullest and most Ilistinct manner to us, through one of
our principal Seeretaries of State.


33. 1t being of the greatest importance to our serviee, and to the
welfare of our subjects, tbat justice be everywhere speedily and duly
administered, and that aH disorders, delays, and otber undue practiees
in the administration thereof, be effectuaJIy prevented; we do parti-
cularly require you to take especial care that in aH courts where you are
authorized to preside, jnstke be impartially administered; and that in
aH other courts established within oul' said island, aH judges and other
persons therein concerned do likewise penorm theil' several duties
without ~ny delay or partiality. Yon shaH not erect anycourt Ol'
office of judicature not before erected or established, nor dissolve any
comt or office already erected ar established, witbout our especial
order.


34. You are, for the bettel' administration of justice, to endeavoul'
to gel a law passed in aur said island, wherein shall be set the valne
of men's estates, eitber in goods or lands, undel' which tbey shallllot
he capable of serving as jmors.


35. You are to take care rhat allwrits be issued in our name through.
out OUT said island nndel' youl' government.


36. Whereas, in pursnance of an aet passed in the fifth year of the
reign of his late Majesty, King Geol'ge the Fourth, intituled, "An A:et
for the beUer administratiou of justice in N ewfollndland, and fol' othel'
purposes," by our charter or letters paten~, issued undel' the great seal
of the United Kingdom of Great Britain and Ireland, a supreme comt
of jnrisdiction, called the "Supreme Court of Newfoundland," was
e\'l!Cted and established in om said island, with certain powers and
anthorities, and under certain regulations therein specifted, y<.lU are




NEWFOUNDLAND-ROYAL INSTRUCTIONS. 443
hereby required 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 aH 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
tabJes 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 tables oí fees to
us, through one of our principal SecretafÍes of State.


38. You shall not by colour of any power 01' authoi"ity, hereby 01'
otherwise granted or mentioned to be granted to you, take upon yoo to
give, grant, or dispose of any office or place within our said island,
which now is or shall be granted undel lhe great seal of this kingdom,
or to which any person is 01' shall be appointed by warrant UOOei" our
sign manual and signet, any further than you may, upon the vacancy of
any such office 01' place, or upon the suspension of any sud;} 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 Secretal'ies of
State, which you are to do by the lirst opportunity, and have l'eceived
our further directions therein.


39. You are to transmit unto us, through one oC Otil' principal
Secretaries of State, with all convenient speed, a particular account of
aH establishmcnts of jurisdictiollS, courls, offices and officers, powers,
authorities, fees, and privileges, granted an<! settled, or whicR sball ue
granted and settled witbin our said island, as likewise un accoullt of all
the expenses attending the establishment oC the said coorts, and ef such
fund8 as are settled and appropriated to discharge the same.


40. 1t is our express will and pIe asure that you be at aH times aiding
and assisting unto tbe officers appointed fOI the managing, levyiug,
collecting and recei ving public revenues., and such d·uties and re-
venues as are OI shaH hereafter be laid and imposed within :your
government, and the seizures, forfeitures, and arrears which shaU accrue
and grow due by reason tbereof.


41. And whereas complaillts have beeu malle by the officers of our
customs in our plantations in AmefÍca that they have been frequelltly
obliged to serve on juries, and personally fA¡) appear iu arms whensoever
tbe militia is drawn out, and thereby ar.e much hindered intbe execution
of their employments, our will and pleasure is that you take effectual
care, and give tbe necessary directions that the several offieers. of our
customs be excused and exempted from serving 011 any juries, or
personally appearing in arms in Ihe mili tia, unless in case of absolute
necessity, or serving any parochial offices which may, hinder them in
the eliecutio!l oí their duties.




444· NEWFOUNDLAND-ROY AL INSTRUCTIONS.
42. And in case of the vacancy of lhe collector, o\' any of our officers


of the customs by dcath, removal, or otherwise, and in order that there
may be no delay given on occasion of such vacancy to the masters of
ships 01' merchants in their despatch, you are hereby empowered, subject
to such instructions as you shall receive from our Commissioners of our
Treasury, or our High Treasurer, 01' from the Commissioners of our
Customs for the time being in this behalf, to appoint other persons duly
qualified lo execute such offices, until further directions shall be received
from our Commissioners of our Treasury, 01' our High Treasurer, lO
whom you are to give notice of such 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, or our High Treasurer, 01' by the
Commissioners of our customs.


43. y ou shall not remit any fines 01' forfeitures whatever aboye the sum
of .f:5o, nor dispose of any forfeitures whatsoever until upon signifying
unto our Commissioners of our T~easury, 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 or value thereof(which you are lo do
with all speed,) you shall bave rcceived 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 llave made inquiries by a jury upon their oaths into the true
value thereor, nor until you shall have transmitted to our Commis-
sioners of 'our Treasury, Ol' to our High Treasurer for the time being, a
particular account of such forfeitures and escheats and the value
thereof, and shall have received our directions thereupon, and you arp-
to take care that the produce of the said forfeitures and escbeats, in
case we shall think proper lo 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 Tl'easury,
or to our High Treasurer for the time being, with the names of tbe
pel'sons to wbom disposed of.


45. Whereas you will receive from our Commissioners for executing
the office of High Admiral a commission constituting you Vice-Admiral
of our said island, you are bereby 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 the acts fol' tbe
more effectual suppressson of piracy, our will and pleausure is, that in
all matters relating to pirates you govern yourself according to tbe




NEWFOUNDLAND-ROYAL INSTRUCTIONS. 445
¡ntent 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 shaIl be occasion, according to the cornmission
and instructions granted in tltis kingdom: but you are not to grant
commisssions of marque or reprisal against any prince or state or their
subjects in amity with us to any person whatsoever without our special
cornrnand.


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 tbe said office of Receiver-General; and we do hereby
enjoin and require you to make up your accounts with him, his
deputy or deputies, of such rights of Admiralty (eJfects of pirates
included) as you or your officers have received, or shaIl or may receive
for the future, and to pay over to the said receiver· general, his deputy or
depulies, for our use, all su eh sum or sums of money as shall appear
upon the foot of such accounls lo be and remain in your hands, or in
the hands of any of your officers : And whereas our said Receiver-General
is directed, in case the parties chargeable with any part of such our
revenue refuse, neglect, or delay payment thereof, by himself or
sufficient deputy, to apply in our name to our Governors, Judges,
Attorney-general or any other our officers 01' magistrates, to be aiding
or assisting to him in recovering the same, it is therefore our will and
pleasure that you, our Governor,our J udges, our A ttorney-general, and
al! other officers whom it may concern, do use alllawful authority for
the recovering and Ievying thereof.


49. And whereas by letters patent under the Great Seal of our United
Kingdom of Great Britain and Ireland, tearing date at Westminster the
10th day of .May, 1825, (he island of Newfoundland was constituted to
be part of the see of the Bishop of N ova Scotia, and the said bishop was
thereby duly authorized to eXl'rcise jurisdiction, spiritual and ecclesi-
astical, in the said colonies, it is om 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 or
commissaries, in the execution of their charge, and the exercise of such
ecc\esiastical 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 common prayer, as by law established, read each




446 N EWFOUND LAND-ROY AL INSTRUCTIONS.
Sunday and holiday, and the blessed Sacrament administered according
to the rites of the Church of England. You shall be careful that aH
OI'lhodox churches already built tht>re 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 portio n of land fol'
a glebe be allotted to him. And you are to take care that the parishes
be so limited and settled as you shall find most convenient fol' the
accomplishing this good work, and in aH matters relating to the
celebration of di vine worship, lhe erection and repair of churches, the
maintenance of ministers, and the settlement of parishes throughout
youl' government, you are to advise with the right l'everend father in
God the Bishop of Nova Scotia fol' 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 resident within the said diocese, and officiating there as a
clerk in holy orders, fol' six calendar months at the least next before such
benefice shall have become vacant, whom the said bishop may certify to
you to be a fit and proper person to filJ such vacancy, and to be a person
of good Jife and conversation, and conformable to the doctrine and
discipline of the said United Church. But if at the time of any such
vacancy occurring [Itere shall not be resident within the said diocese
any c1erk in holy orders of the said UlIited Church who shall have been
resident and officiating therein as aforesaid, in whose favour the said
hishop shall think proper so to certify to yo u, or if no such certificate
shall be received by you from the said bishop within three calendar
months next after sllch vacancy shall occur, then and in either of such
cases you shall forthwith report the cil'cumstances to us, through one of
our principal Secretaries of Slate, to the intent that we may nominate
sorne fit and proper person, being a clerk in holy orders as aforesaid, to
fill the said vacancy. And we do enjoin and command you to present
to the said hishop for institution to any such vacant ecclesiastical
benefice, any clerk who may be so nominated by us, through one of our
principal Secretaries of State.


52. You are to inquire whether there be any minister within your
government who preaches and administers the sacrament in any
orthodox church or chapel, without being in due orders, and to give an
accouut thereof to the said Bishop of N ova Scotia.


53. And whereas doubts have arisen whether the powers of granting
Iicences for marriages and probates of wills, commonly called the




NEWFOUNDLAND-ROYAL INSTRUCTIONS. 44,7
Office of Ordinary, which we have reserved lo you, our Governor, can be
exercised by deputation from you to any other person within om said
island under your government, it is our express wiIl and pleasure, and
you are hereby directed and required not to grant deputations fol' 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 lo take especial care that atable of marriages esta-
blished by the canon s of the Church of England be hung up in every
orthodox church and duly observed.


55. The Right Reverend Father in God, Edmund, then Lord Bishop
of London, having presented a petition lo Rís Majesty Kíng George
the First, humbly beseeching him to send instructions to the Governors
of an the several colonies and plantations in America, that they cause
all laws already made against blaspherny, 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 an persons
who shall olfend in any of the particulars aforesaid should 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 elfectual laws be passed for the
restraint and punishment of an such of the aforementioned vices agaillst
which no laws are as yet provided. And also you are to use your en-
deavours to render the laws in being more elfectual, by providing for
the punishment of the aforementioned vices, by presentment upon oath
lo be made to the temporal courts by the churchwardens of the several
parishes, at proper times of the year to be appointed for that purpose ;
and for the 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 lInder your g'overnment whose il1 fame and
conversation may occasion scandal. ,


56. Jt is our further will and pleasure that you recommend to the
legislature to enter upon proper methods for the erecting and main-
taining schools in order to the training up ofyouth to reading, and to a
necessary knowledge of the principIes of religion. Y ou are not, how-
ever, to give your consent to any act respecting religion without a
c1ause suspending its operation until our pleasure s'Jall have becn sig-
nified thereupon, unless a draft thereor shall have been previously
transmitted by you for our consideration and approval.


51. And we do further direct that in an matters arising within your
government connected with the education of youth in the principIes of
the Christian reJigion according to the doctrine of the said U nited




448 NEWFOUNDI,AND-ROY AL INSTRUCTIONS.
Church of England, or connected with the prevention of vice and pro-
faneness, or tbe conversion of negroes and other slave8, or connected
with tbe worsbip of Almighty God, 01' the promotion of religion and
virtue, you be advising with the bishop for tbe 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 tbe said bishop
for the promotion of any of the objects before mentioned, so far as such
designs and undertakings may be consistent with the law, and with
your said commission and these our instructions.


58. You are to transmit to us, through one of our principal Secreta-
ries of State, regular monthly returns of the militia of our said island
whenever and so long as the same shall be embodied, with a particular
state of their arms and accoutrements; alld for the due preservation and
security of which you are to establish 8uch regulations as you shal!
judge to bE' most effectual for that purpose.


59. You shall not upon any occasion whatsoever establish 01' put in
execution any articles of war, '01' other law martial, upon any of our
subjects, inhabitants of OUT said island, witlJOut the advice and consent
of our Counci!.


60. And ~se of any distress oí any other of our plantations, you
shall, upon application of the respective Govt'rnors 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 conceive may be made, 01' advantages gained by trade, and
in what way we may contribute thereunto.


62. If any thing shal! harpen which may be of advant\tge or security
to OUT islaud under your government, which is not herein 01' by our
commission provided.for, we do hereby allow you, with the advice and
consent of our Council, to take orders for the present therein, giving
unto us, through one of our principal Secretaries of State, speedy notice
thereof, that so you may receive our ratification, if we shall approve the
same: Provided always, that you do not, under colour of any power 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 commission, to direct
tbat in case of your death 01' absence, and there be at tbat time no per-
son within our said island commissioned or appointed by liS to be




NEWFOUNDLAND-PROCLAl\fATION. 449
I.ieutenant·Govemor, or special1y appointed by ns to administer the
govemment within our said island, that lhe conncillor 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 out' said island, and who shall take the oaths appointed to be
taken by yon or the Commander·in-Chief of our said island, shall take
upon him the administration of lhe government, and execute our said
commission and instructions and the several powers and authorities
therein contained, in the manner therein directed. 1t is, nevertheless,
our express 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 fOl" that purpose; and that he shall not take
upon him to dissolve the Assembly then in being, or to remove or sus-
pend any of the members of our Council, nor any judges, justices of the
peace, or o(her oflicer, civil or military, witlJOut the advice and consent
of at least scven of the Council, nor even then without good and suffi-
cient reason for thc same, which the said President is to transmit, signed
by himself and the respective Council, (o us, through one of our prin-
cipal Secretaries of State.


64. And whereas we are willing lo pro vide in the best manner for
the support of the government of our said island, by setting apart suffi-
cient allowances lo 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 happcn that you shall be abst'nt from our said
igland, one full moiety of the salary, and of all perquisites and emolu-
men(s whatsocver, which would otherwise become due unto you, shalI,
during the time of your absenee, be paid and satisfied unto such
Lieutcnant-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 bctter support of (he dignity of our government.


65. And you are upon all oceasions to seml to us, through one of
our principal Secretaries of State, a particular account of your pro-
ceeedings, and of the conditions of affairs within yoUf government.


(Copy.)
WILLIAMR.


A PROCLAMATION.
WILLIAM TIlE 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;


Whereas by onl" letters-patent under the great seal of our United
I\ingdom afcircsaid, bearing date at Westminster the 2d of March,


GG




450 NEWFOUNDLAN D-PROCLAMA TION.
1832, in the second year of our reign, we have given and granted to
om 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 shalI be divided into
nine districts, to he called respectively,


The district of Sto John.
The district of Conception Bay.
The district of Fogo.
The distriet of Bonavista.
The district of Trinity Bay.
The distr¡et of Ferryland.
The district of Placentia and St. Mary.
The district of Burin .
. The district of Fortune Bay.


-


And it is our furlhcr will anO. pleasure, and we do hereby declare,
that the before-mentioned district of St. John 8hall consist of and in-
clude alI 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·mentioned district of Conception Bay 8hall
consist of and inelude al! that part of our said island which, bounded
in like manner, is situate und Iying between Broad Cove anel Bay
Verd's Head.


And that the before·mentioned district of j.'ogo shall consist of and
inelude all that part of our said island which, bounded in like manner,
is situate and Iying between Cape St. John and Fogo Island, incIuding
that island.


And that the bcfore-rncntioned district of Bonavista shall consist of
and include a1l that part of our said island which, bounded in like
manner, is situate and Iying between Cape Freels and Cape Bonavista.


And that the before-mentioned district of Trinity Bay shall consist
of and ¡nelude all that part of our said islano. which, bounded in like
manner, is situate and Iying between Cape Bonavista and Cape Verd's
Head.


And that the befóre-mentioned district of Ferryland shall consist of
and inelude all that part of our said island which, bounded in like man-
ner, is situate and Iying between Petty Harbour and Cape Race.


And that the before-mentioned district of Placentia alld Sto Mary
shall consist of and ¡nelude an that part of our said island which,




NEWFOUNDLAND-PROCLAMATION. 451
bounded inlike manner, is situate and lying between Cape Race and
Rushven.


And that the before-mentioned distriet of Burin shaIl consist of and
include all tbat part of our said island whieh, bounded in like manner,
is situate and Iying between Rushven and Garnish.


And that the before-mentioned distriet of Fortune Bay shall consist
of and inelude aIl that part of our said ¡sland whieh, bounded in like
manner, is situate and Iying between Garnish and Bonne Bay.


And we do further signify and declare our pleasure to be that the
said district of Sto John shall be represented in the Assembly by three
members.


And that the said distriet of Conception Bay shall be represented in
the saíd Assembly by four members.


And that each of the saíd 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 Placen tia and 81. Mary shall be repre·
sented in the said Assembly by two members.


And that ea eh of the said districts of Hurin and Fortune Bay shaIl be
represented in the said Assernhly by one member.


And it is our wil! and pleasure that the Governor for the time being
of our said island do appoint sorne fit person to be the returning officer
within eaeh 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
districtg before mentioned, which writs sball be addresseJl to the several
returning officers aforesaid, and shal1 by them be relurned to the Colo·
nial Secretary fof1ñe time being of our said island.


And it is our will and pleasure that every man, being oC the full age
of twenty-one years and upwards, and bejng oC sound understanding,
and being our natural horn subject, or having be en lawfully naturalized,
and never having been cOll.victed in due course of law of any infamous
crime, and having fol' two years next immediately preeeding the day of
election occupied a dwellillg-house within oUt said ¡sland as owner
or tenant (hereof, shalI be eligible to be a member of the said House (lr
Assembly.
- And it is our further will and pleasure that every man who for one
year next immediately preceding the day of election hath occupied a
dwelling-house within onr said island as owner or lenant thereor, and
who in otller respects may be eligible, according to the regulations
aforesaid, to be a membet· of the said House of Assembly, shall be eom-
petent and entitled lo vote fol' the eleetion of members of the said
Assembly in and fol' Ihe district within which the dwelling-house so
occupied as aforesaid by him may be situate.




452 NEWFOUNDLAND-PROCLAMATIOX.
And it is our pleasure that the votes for the members of the said As-


sembly shall be taken by the said several returning officers at such one
or more place or places within each of the said districts as shall for
that purpose be appointed in the body of the writ addressed to the re-
turning officer of every such district respectively, and at or within such
time 01' times as shall for the purpose be therein limited: but inasmuch
as by reason of the difficulty of internal communication within our said
island, many persons entitled to vote might be prevented from the exer-
cise of such their franchise, if in every case it were necessary to attend
in person for that purpose, we do therefore declare our pleasure to be,
that in respect of any dwelling-house situate at the distance of more
than (1) miles from the nearest place of election, within any of the
said districts, the vote of any householder, duly qualified as aforesaid, may
be given without his personal attendance, by a written notice subscribed
by such voter, in the presence of two credible witnesses, and dulyat-
tested by their signatures; which notices shall be in such forín as our
Governor for the ti1lle being of our said island shall from time to time
directo


And it is our further pleasure, that if any candidate or voter at any
such election shall object to any vote then tendered, it shall be the duty
of the relurning officer to hear such objeclion, and whal may be alleged
in support of, or in answer lo, the same, and to examine on oath the
parlies by 01' againsl whom such objection may be raised, and any per-
son or persons who may be adduced as a witness or as witnesses on
either side; and upon such hearing, lo admit or to overrule any such
objection as may to such returning officer 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 relurning officer to be dulyelected
lo be lhe reprcsentatives thereof in tbe said General Assembly, and shall
thereupon be returned and take their scats accordingly: Provided
always, that in cases of peculiar douht or difficulty, it shall be compe-
tent for any such returning officer to make a special return, setting forth
the grounds of such doubl, upon which the said Hou;e of Assembly
shall afterwards decide.


And it is our will, and we do further declare, that the Assembly so to
be chosen as aforesaid shall continue only during our pleasure, and that
the said Assembly shall not proceed lo the dispatch of any business,
unless six mcmbers at the least shall be presenl at and during the whole
of the deliberations oftbe said IIouse thereupon.


(1) Left blank in the Housc of COll1mOlls' Pape!", 13.32, No. 704.




NEWl'OUNDLAND-PI~OCLAMATION.


Aud whereas it may be necessary, in order to the complete exeeution
of the several purposes aforesaid, that furthcr reglllations should be
made for the conduct of the said elections, and the return of members
to serve in tbe said IIouse of Assembly, we have therefore autborized,
and do hereby authorize, our Governor for tbe time being of our said
island, by any proclamatioIl 01' proc1amations to be by him from time
to time issued in our name and on our bebalf, to make such further re-
gulations as may be necessary for the conduct of the said elections, and
for the return of mcmbers to serve in the said Rouse of Assembly, and
for the due discharge of the duties of the said returning officer; and
which regulations sball be of full force, virtue, and effect, until provision
be otberwise made by law, it being, nevcrtheless, our pleasure that the
regulations so to be made as aforesaid be not repugnant to, o\' incon-
sistent witb, the several provisions hereinbefore contained, or any of
tbem.


Given at OUI' Court at St. James's, on tbe Twenty-sixth day of July,
One Thousand Eight Hundred and Thirty-two, in the tbird year of our
reign .


....-




( 454 )


NOVA SCOTIA.


-


THIS colony is situated between the 4,8° and 49° of no1'th
latitude, and the 60° and 67° west longitucle, is bounded on
the no1'th by the River St. Law1'ence, on the east by tho
Gulf of the Sto Law1'ence and the Atlantic Ocean, and by
Cana da and N ew EngIand on the west. In the year 1784
this pl'ovince was divided into two gove1'nments, of Nova
Scotia and New Brunswick. The latter is boundcd on
the westward by the River St. Croix, and by a line
drawn due no1'th from thence to the southern boundary
of the provine e 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 wuth, by a line in
the centre of the Bay of Fundy; from tlle River Sto Croix
to the mouth of the Musquat River; by that river to its
source, and from thence by a line due east ac1'oas the
isthmus into the Bay Verte, including an tlle islands within
six leagues of the coast.-Ency. Brit.


HlSTORY AND CONSTITUTION.


The first grant of lands 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 eolony was yet in its infancy when the settlement
of New England was first established in its neighbour-
hood. Hostilities perpetually occul'red between the set-
tlers in the two coIonies, 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 impol'tance, oflered gl'eat advantage to aH set-
tlers, particularly soldiel's and sailol's, in N ova Scotia,
and 374<0 persons accordingly went thithe1' in that year.
'rhe popuIation was estimated by M1'. Colquhoun in 1812
at lOO,OOO.-Ency. Brit.


Prince Edwal'd's Island, then called the Island 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 eall
General Assemblies for the diffcrent colonies placed undel'
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 eommission to the Duke of Richmond of the
10th April, 1816, his Grace was constituted Governor-
General over the province of N ova Seo tia, the island 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 wiII permit, to the laws
of Great Baitain."


A similar instl'uction as befare, relative to Cape Breton,
accompanied this commission.


By the commission of the 27th April, 18QO, to the Eal'l
of Dalhousie, he was appointed Governor-in-Chief over
the Canadas, the provinces of Nova Scotia, New Bruns-
wick, and Prince Edwal'd'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 fol'
Nova Scotia and for Prince Edward's Island respectively.


The instructions of the same date refer to and con6rm
the express declaration respecting Cape Breton in the
commission, and direets the Governor to summon to the
Assemblies of Nova Seotia sueh a number of freeholders
from Cape Breton as were usually summoned to sueh
Assemblie!l before the time whcn the saiel islaml was 6rst
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 nccez;sal'y regulations for carl'ying 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 Bl'eton was directcu to be conformable
to the usage and practice of the Province of Nova Scotia.
The act recited, that Cape Bl'eton was in futurc to be




NOVA SCOTlA.


known by the name of tbe County of'. Cape Bl'ctOll, und
to be representecl in the Assembly of the pl'ovince by two
members.


'rhe Supreme Court was directed to be helel by the
Chi~f Justiee, or in his absence by two of the Assistant
Justices 01' one Assistant Justice, aneI the Associate Circuit
Judge of the Court, and that the Governo1' might ap-
point n.ve n.t persons to be judges of the Inferior Comt of
Common Pleas in the said county.


'rhe granting of probate of wills ancl of letters of admi-
nistration for the said county were to be done at Syelney.
'rhe bal'risters and attornies of the Supreme Comt were
to be alloweel to practise in that and aH the other courts
of the county, but not elsewhere out of the county, unless
admitted in the Supreme Comt 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, 18Z3.


'rhe 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 formed upon that of the United Kingdom,
and consists of a Council ancl House of AssembIy. 'rhe
Council are twelve in number, at tlle head of whom are
the Chief Justice of the province, who is the president,
and the Bishop of Nova Scotia, who ranks next to him.


In '1758 a House of Representatives was formed, agree-
ably to a constitution granted to the colony, corresponding
with that of England.


'rhe Legislative Assembly is composed of forty-one
members. 'rheyare electcd by inhabitants holding an
annual interest of 408. in land, or who are householders.
-2 Macg. Brit. Amer. and Almanack for N ova Scotia.


LAWS. (1)
AH causes, both civil and criminal, are detcrmineu ac-


cording to the common anll statute law of England, and
the statutes of the province. 'rhe bankrupt laws of Eng-
land are said not to extend to this province. (2)


COURTS.


The courts of law are constituted to corrcsponu with


(1) See ante, p. 3 to 16, on tbe ge- subject to the law of the lllothereoull-
¡ü::ral topie how far Ihe colonies are try.


(2) But see ante, pp. 102, 103, 1M.




NOVA SCOTIA.


those of England. Thc practice of the Court of Chan-
cery is ag1'eea ble to that of England. The Governo1' is
chance1101', but there is also a Master of the Rolls. The
Supreme Comt of Judicature is modelled after the Court
of King's Bench in England, und closely follows its prac-
tice. lt possesses also the peculiar jurisdictions of the
Courts of Common Pleas and Exehequer. The Supreme
Court consists of one chief justice, th1'ee puisne judges,
and an associate judge. The ]aw officers of the Crown
are an Attorney and Solicitor-general.


There is a Court of Common Pleas in each of the ten
counties into which the province is divided. Their 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, aneI fl'om the Supreme Court to the
King in Council. There is a Comt of Quarte1' Sessions
in each county.


The1'e is a Court of Error and of Marriage and
Divorce, composed of the members of the Council.


There is a Court of Vice-Admiralty, presided over by
the Chief J lIstice of the province.


There is a Comt of Eseheats and Forfeitures, pl'esided
over by one eommissionel', and a Comt for thc pl'obate of
wills and granting lette1's of administration. 'l'he jUl'is-
diction of this court is entrusted to an officer styled the
Surrogate General of the P1'ovince.


The general expense of the judges and eourts of jus-
tic e is stated in the account of the Colonial Revenue to
amount to .,t'5000.-2 Maegrcgor's Brit. Amer. and Alma-
nack.


-


CAPE BRETON


Is an island near the castern continent of N orth America,
Iying between 4,50 and 470 of north latitude. 1t is se-
parated from N ova Scotia by a nar1'ow strait, called
Causo, amI is about 100 miles in length, and 50 in breadth
lt is surrounded by little sharp-pointed rocks, separated
fro111 cach otller by the waves, above which sorne of their
tops are visible. All its harbollrs are open to the cast,
turning towurds the south. Except in the hilly part, the
surface of the country has but little solidity, being every




458 NOVA SCOTIA.
whel'e covered with a light moss and with water. The
climate is very cold.


HISTORY AND CONSTITUTION.


Cape Breton was discovered by Sebastian Cabot, and
aftel'waros by Verazani, who named it Isle du Cap.
Fishermen had resorted to this island every summer, but
the French, who tóok 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 settIement. On account of the difficulty of ap-
proaching this place, the settlers subsequently changed to
Louisbourg, the access to which was easier. The forti-
fication of Louisbourg was not however begun till 1720.
The isIand, which is the, key to Canada, was attacked
and captured by the English in 174,5, restored to l;'rance
by the tl'eaty 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 negIected, but after the first American
l'evoIutionary war, the British government turned their
attention to the colonies that still remained in their pos-
session, and Cape Breton received some degree of eonsi-
deration. It was made a distinct colony from N ova
Seo tia, 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 01' that pro-
vince. See more on the subject of this isIand, ante,
and also Ency. Brit.; and 1 Macgregol"s Bl'it. Amer.


PARTICULAR LAWS.


Wills.
32 Geo. ~, c. 11. An Act reIating to Wills, Legacies;


and Executors, and for the settIement and distl'ibution 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 pl'esence, and by his dil'ectionsj
uefol'c and attcsted by th1'ee witnesscs.


2. Devise revocable onIy by another will 01' other w1'it~
ing, 01' by destruction thereof.




NOVA SCOTIA. 459
3. N uneupative will of sum exeeeding .t30 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
eited.


6. Written 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. Exeeutor must, in thirty days after testator's death,
prove andreeord his will, 01' present and renounee same,
and thereupon administration may be gl'anted to widow
01' next of kin, and on their refusaI, to a creditor of the
de~ased.


Debts.
32 Geo. 2, c. 15. An aet for making lands and ten e-


ments liable to the payment of Debts.
Seet. 1. When personal estate is insuffieient to satisfy


a judgment¡ exeeution may go against debtor's real estate.


Frauds und Perjut'ies.
32 Geo. 2, e. 18. An Aet fol' preventin,g Frauds und


Perjuries. ,
Seet. 9. Exeeutions may be levied on trust estates in


lands as of lands themselves.
10. Trust esta tes deemed assets by deseent in the


hands of the heirs.
15. Exeeutions to bind personalty from delivery there-


of to the offieert who must indorse thereon time of re-
ceiving the same.


Statute of Limitations.
32 Geo. 2, e. 24,. An Aet for Limitation of Aetions¡


aml for avoiding Suits at Law.
Sect. l. Suits at law 01' in equity fol' lands to whieh


any person has title, must be sued within twenty years
after title first aeerues.




NOVA SCOTIA.


2. No pCl'son may cntel' into lands aftcl' twenty years
from theil' title first accruing.


3. l\linoJ's, married women, pel'sons 1Ion compos, pri~
soners 01' absentees, when theil' title first accrues, may
bring their action, 01' enter within ten years after their
disability ceases.


Rate of Interest.
10 Geo.3, e. 5. An Act for establishing the rate of


Interest.
Sect. 1. The legal rate of interest to be oC6 per cent.


per annum, and secul'ities reserving more dec1ared void.


Absent Proprietors.
31 Geo.3, c. 1. An Act in addition to and amendment


of an Act made in the \;hirteenth yeal' of his present
Majesty's reign, intituled "An Act fol' making and levy~
ing the expenses attending the executing 'Vrits of Pal'~
tition."


If non-resident proprietor of landS divided by parti~
tion l'efuses 01' neglects to pay his share of the eosts, the
Supreme Court may direet 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 lie.


33 Geo. 3, c. 6. An Act in addition to and amendment
of an Act(3) made in the fifth yeal' 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 Propl'ietol' of Lands within
the same to paya dividend 01' proportion of any county
01' town charge, to be assessed aceording to Law, and to
bear their just proportion in repairing Highways, Roads,
and Bridges within the said townships l'espectively."


Sect. 1. Where no person appears to pay taxes assessed
on lands, 01' to perform highway laboul' for the same, and
there are no goods thel'eOll, justiees of the peace may
order sueh lands to be ad vertised to be let for three
months; and if no person will give fol' one yeal"s rent


(3) 5 Geo. 3, c. 5, whieh provides,
tbat al! non-resident proprietors of
lands pay their qllota of connty and
tOIVIl cbarges fol' labonr Oll bigbways,


or on default that one justice may
let out such persOIl's lauds 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 or purchase-money of such lands be


more than sufficient, the surplus to be paid to the owner,
and if unc1aimed 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 comt that the same may be
enrolled therein for such purpose, and proving the instru-
ment creating such entail; and comt may take such ac-
knowledgment, and cause entry thereof to be made, and
may make a rule, that unless cause be shown before last
day of ensuing term, the indentures be so enrolled; such
rule to be duly advertised in tbe 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 efrect


of a common recovery, provided they be registered.




( 462 )


PRINCE EDW ARD'S ISLAND.


-


THIS colony, formerly known as the Jsland of Sto John, is
situated in the gulf of Sto Lawrence. Jt 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 amI
well-watered meadows, an 'extremely varied soíl, capahle
of the culture of all sorts of grain, and it abounds with
game and fish.


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 Sto John, in honour
of the saint. The English however did not make any
use of the discovery. 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 value
and importance, and the French were alIowed quietIy to
proceed with the settlemeilt. Their 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 individuals. lt Was
never properly settled till 1749, when about 3000 inhabi-
tants of Acadia passed over to tbe island, and being
almost alI agriculturalists, the colony soon began to flourish
under tbeir care. The government unwisely attempted
to confine tbeir Iabours to agriculture alone. lt was made
a dependcncy of the Royal Jsland (now called Cape Bre-
ton) which itself depended upon Canada. When taken
possession of by the English they «rove out the French
inhabitants, amounting to nearly 3000 persons. It is




PRINCE EDWARD'S ISLAND. 463
said (1) that the Count Egmont applied to Charles 2 to
have the isIand granted to him on a feudal tenure, lInder-
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
l'eadily have agreed to these eonditions, but that the
Crown Jawyel's having declared that by the Aet of Par-
líament recently passed, abolishing aH 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 relue-
tantly to refuse the offer. The island was therefore di-
vided into allotments, whieh aftel' some time were ehiefly
oceupied by 8eoteh and Irish adventurers.


It shortly aftel'wards again returned into the possession
of the Fl'ench, by whom it WIlS 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 eolony is now governed, like the rest of the Bri-
tish possessions in North America, by aets passed by the
Governor, Council, and Assembly, and confirmed at
home. The inhabitants of the island distinguished them-
selves by their loyalty during th~ American revollltional'Y
war, and the Duke of Kent having afterwal'ds repail'ed
some of the injul'Y whieh they had suffered during the
con test, and perfol'med other act!! that gave him a de-
served populal'ity among tbem; they testified their good
will towards his Royal Highnes!l 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 Island. Charlotte Town is the ea-
pital of the colony.-See 8 Raynal's East and West Indies,
24,3, 245, and 1 M'Gregor's Brit. Amel'Íea, 353, 366.


(1) 8 Rayn. E. and W. Ind. ~44.




464 PRIXCE EDWARD'S ISLAND.


LAWS. (Q)
'rhe Jaws of the isIaud must be the Iaws of England in


force at the time of its acquisition, (so fal' as they are ap-
plicable to the coJony,) the Iaws of Nova Scotia so far as
they have not been altered 01' repeaIed sin ce the island
becáme subject to a distinct government, amI the acts
passed in its own AssembIy since that periodo


COURTS.


'rhere is a Supreme Court of Judicature exel'cising the
powers of the Comt of King's Bench and Common Pleas
in EngIand, where the law is administered by (lne chief
justice and two puisne judges. 'rhe intel'ests of the
Cwwn are protected by an Attorney and Solicitor-Gene-
ral. 'rhere are also justices of the peace with powers
similar to those exercised by such persons in EngIand.


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 wilIs cannot
be revoked but by a subsequerit will similady executecl.


A nuncupative will "where the estate bequeathed" ex-
ceeds the value of .t:30, is bad, unless proved by the oath
of thl'ee witnesses, and unIess it be proved that the testa-
tor, at the time of pronouncing the same, desired the per-
sons present to bear witness that such was his will, ancl
unless it was made in his Jast illness. N o proof of such
will can be receivecl after the expiration of six months,
unless the testimony was put into writing within six clays
after the making of the will.


Debe.
In default of personalty, lands are made liable to the


payment of debts by the 26 Geo. 3, c. 9, but by the 35
Geo. 3, c. 8, land~ levied upon are not to be sold within


(2) See ante, p. S to 16, 01\ the topie how fal' liJe eolonics are subject to
tbe law of the motile,. country.




rRINCE EDW ARD'S ISLAND. 465
two years after the levy. By the 59 Geo. 3, c. 7, lease-
hold interests may be sold within six months.


Insolvent Debtors.
The court, or any two justices thereof, may order a


part, or if nccessary the wholc of an insolvent's l'eaIty and
personalty, to be assigned to his creditors, and may then
dischargc him. The assignees must then pay the fees of
tIJe 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, c. 3, declared to be
equivalent in effect 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 Cour!
of Justice or a justice of the peace, 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 or 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 efreet till soregistered.


A feme covert may, under the Colonial Act, 1 Geo. 4,
c. 1, acknowledge a deed ofIands for barl'ing dower, if in
the United Kingdom or any British colony, before a judge
of a Court of Record, Master in Chancery, or Justice of
thc 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 eolony, by a certificate under the hand and seal
of the Governor i 01' if the mamed woman Uve in any
foreign kingdom, the aeknowledgment may be taken be-
fore any minister, ambassador, or consuI from the United
Kingdom, and certified under his hand and seaI, 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
líes between 529~ 55' and 34G> 17' south latitude. lts most
western point is at the mouth ofthe Koussie River, which,
with Bosjesman's eountry, forms the northern boundary of
the eolony. On the west and south it is bounded by
the Atlantic and lndian oeeans, and on the east by
Caffre land. lts 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 w hole salubrious. The predominant
soils of the eountry are a stiff c1ay, into which no plough
will enter until it is thoroughly soaked with rain, and a
light red sand, eapable of extreme fertility wherever it is
sufficientIy irrigated. .


The geographieal position of the Cape Ís very com-
mandinga lts distanee from the coast of Brazil is a
month's voyage, and from British Guiana a voyage of six
weeks. lt Ís 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. lts c1imate is tempera te, and its natural
productions numerous and abundan t.-Cape Almanack
for 18SL


HISTORY AND CONSTITUTION.


The colony surrendered to Great Britain in 1795. The
powers oi' government tha! had previously been exercised




CAPE OF GOOD llOPE. 467
by the Governor anel Council wcre 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 over all causes where the amount exceeded .i'200
01' 1000 rix dollars. Up to 1812 the lands had heen held
on thc conditions of a loan-tenme, (1) hut 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 memhers of the Burgher Senate,
and Landdrosts anel Heemraaden of districts. This sys-
tem was changed, so far as related to the Supreme Court,
by the Charter of Justicc gl'anted in 1827, and again by
thc Charter of Justice of tbe 4~th of May, 1832. (See post.)


AH the judicial officers, except the Judges of the Su-
preme Comt and His Majesty's Fiscal, hold thcir appoint-
ments during the Governor's pleasure.


(1) The tenures ofland are various.
The most aneient tenure i. that ofwhat
are called loan lands. 01' cel'tain farms
granted tD the early seulers at an ano
nual rent of twenly-four rix dollars.
It is " kind of lease in perpetuíty.
the payment of lhe rent being held to
be a consl3m renewal. 'fhrce farms
are calclllated to contain exactly nine
square milcs; the numbcr of thcm in
the whole colony is about 2000.


Gratuits lands are a customary co-
pyhold and pay about tbe same rent
as the loan farms. They are supo
posed to have be en granted. as marks
of favour. and are chiefly in tho
neighbourhood of tbe Cape, and in
better slate of cultivation than tbe loan
farms.


'fIJe quit rents are the produce oC
pieees of waste land gencrally Iying
contiguous to an estale. for which the
owner pays annually at the rate of a
sltilJing un acre. under alease granted
to him for lifteen years,


The ft'eehold estates are grants of
about 120 Englieh acres caeh. whieh
were made to the original seUlers;
they lie chicfly round ¡he Cape. and


contain tbe best land of the eolony.-
Account of Soulh Africa.


(2) 1t is lnuch to be regretted that
that part of the Report of the Com-
missioners of Inquiry which related to
the administt'a.tion of justiee in this
colony has not been p,'inted. From
the other portions of the report, those
upon the trade and 6nances of the
Calle. the following notices have been
extracted. 1\11', Barrow's aecoullt of
Southeru Afriea, smaller puhlica.
tions on ¡he same subjeet, and the
Cape Almanack ha\'e also been eon-
slllted. The Report of the Commis-
sioners upon the administration of the
law in the colony must have been.
judging from tbe other portions of
their labour,a mos! valuable docu-
mento It was taken under the follow-
ing instruc!ioDS given in Januury.
1823:-


" The judicial inquiry will embrace
the whole sy.tem and adminislration
of civil and criminal justice. including
the conduct and rcgulation of the po-
lice, and the jl1risdiction. sepurate
and concurrent, of the Courts uf Ad·
miralty."


HI-IB




468 CAPE OF GOOD HOPE.
The chief adminish'ative officel's under the Govel'l1or


are the Landdrost and Heemraaden. The nature of their
powers and duties wiII appea1' in the following sketch


. taken from the Commissioners' Report :-
The Cape of Good Hope is divided into four districts,


over each of which is placed a civil magistrate called a
Landdrost, who with six Heemraaden 01' a Council of
Country Burghers is investe(l with powers to regula te the
police of his district, superintend the affairs of govern-
ment, adjust litigations, and determine petty causes. The
deeisions of these magistrates are, however, subject to an
appeal to the Court of Justice in Cape Town.-l Barr.
Account of South Africa, 12.


~anddrost.
The Landdrost exceutes the ordcrs of the executive


govel'l1ment, and is armed with very extensive powel's 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 distriet, and upon
the reeommendation of the landdrost are appointed by the
Governor. Instructions for the guidance of the landdrosts
were drawn up in 1803, under the administration of Gene-
ral Janssens, were approved by the Batavian government,
and have sinee been adopted, with aIterations introduced
by regulations promulgated by British Governors. They
contain the rules by which the affail's of the several dis-
triets of the colony are administel'ed by them in the se-
veral departments of justice and police, and in colleeting
and disbursing the local l'evenues.


Heemraaden.
The numbel' of the Heemraaden have varied aecording


to the population and extent of each distriet, not being
less than fonr, and not exceeding eight. From the great
extent of sorne of the districts it has been fonnd necessary
to establish sub-drostdies, diffel'ing in no respect from the
constitution of the larger divisions exeept in being respon-
sible to the landdl'osts and heemraaden for the coIlection
and appropriation of the local taxes.


At Simon's Town the offieer who is in military command
of the station has becn appointed Government Resident,




CAPE OF GOOD HOPE. 469
and latterly thl'cC heemraaden have been appointed to
assist him in the duties, which in evcry 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 offenccs and in matters of
police.


The original appointment of the heemraaden is made
by the Governor; the two senior members of each board
retire annualIy, and the landdrost and l'emaining 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 years of age, and having resided three years
in the district.


In conjunction with the landdrost, and undel' his pre-
sidency, the heemraaden hoJd monthJy meetings fol' the
transacting the civil and criminal business of the district,
and auditing thc expenditure. They have also weekly
meetings in their judicial capacities, at which cases are
heard and de<;ided, 01' preliminary informations taken.
Extraordinury meetings 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 heeml'aaden are assisted in the
performance of theil'. administrative and judicial functions
by tllC 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 alI have an exclusive privilege to act as no-
taries and to keep registers of wills, acts, amllegal 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' the' modification of óld ones has been an-
nounced to the public under the various forms of notices,
orders, circular lettel's to the landdrosts, advertisements,
minutes, and lastIy of ol'dinances. A commission was ap-
pointed in the year 1819 to make a compilation of an the
procIamations that were published by Dutch 01' British




470 CAPE OF GOOD HOPE.
authority, and eight volumcs 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 l'cIate to the administration of justice in the
country districts was printed and distributed among the
landdrosts. It was not however complete.


The commissioners (in 1826) recommended that the
whole territory of the Cape of Good Rope, which is now
subject to His Majesty's dominion, should be separated
into two provinces, (3) to be called the"W estern Province
and the Eastern Province. The free population of the
first they statcd might be estimated at 45,014, and the
sIaves at 28,934; that of the latter at 39,513, and the
sIaves at 6,.575.


The chiefjustice is required to certify that the laws and
ordinances that may be passed by the Governor in Coun-
ciI contain nothing that is inconsistent with the Iaws of
the colony, 01' 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 year
1657, to deliberate in criminal matters and to assist in the
triaI of freemen, as contradistinguished 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 civil causes.
They continued to exercise these functions until 1784,
when a Court of Justice was established, cúmposed of a
President, who was a membel' of the Council of Policy,
and tweIve 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 excrcise their share of the judicial functions
until the courts were remodelled in 179f! by the Dutch
government. They have since formed a kind of Admi~
nistrative Council.-Rep. Commissionel's of Inquiry into
the Administration of Govel'nment at the Cape of Good
Rope, House of Commons' Papers, May, 1827, No. 28f!.


(3) Tbi5 recommendation is 1l0W carried into eflcct. See the Chartef of
Justice, post, 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 our
aldermen. They mediate between the boors of the coun-
try and the tradesmen of the town. They have not the
power of infIicting 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 membel's ofthe COUl't of Justice at the Cape,
who had any professional education, at the time of the
commissionel's' inquiry, were the fiscal and the secretary.
The jurisdiction of the court extended to the tria1 of
offences committed by the military. In aH such cases,
however, the Governoi', as commander-in-chief, liad the
power of nominating two military officers to sit on the
triaI and give their votes with the ordinary members.
The decision was by the majority of votes. Two of
the members in turn formed a month1y commission,
before whieh written evidence was produced by the at-
tornies of the parties and every information collected
against the full meeting of the court, which was held once
a fortnight. AH suits under ,t4Q were decided in an in-
ferior coul't, called the Court of Commissaries fol' trying
Petty Causes. In the country distl'icts the landdrost and
heemraaden were empowered to give judgment in an cases
where the damages to be recovered did not exceed ,t30.
The Court of Commissaries was aIso a court for matrimo-
nial affairs (4) and consisted of a President and Vice-Pre-
sident and foul' 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 eithel' of the
parties had been married before and had children, a certi·


(4) Mr. Barrow (vol. i. p. 252,)
mentions, as in force in his time, an
absurd law by which lbe parties in-
lending to marry were obliged to be
present at the Cape, in order to an ..
5wer certain interl'ogatories and pass
the forms of omce tllere, the chief in.


teut of which was to see lhat no im-


proper marriage took place. Of course
lhe journey was purcly vexatious, fol'
.tbe consummation frequently pre-
ceded lhe ceremony, which was never
refused, at least if the man, after
having satisfied his passion, was still
ready to perform his promise.




CAPE OF GOOD HOPE.


Seate was produeed from the Seeretary of the Ol'phan
Chamber, 01' from the notary appointed to administer the
affairs of the ehildren, that the laws of the colony l'elating
to inheritance had been duly complied with.


'rhe Weeskammer, 01' Orphan Chambel', fol' managing
the effects of minors and orphans, was one of the original
institutions of the colon y , and was modelled on those es-
tablishments of a similar kind that are still found in every
city and town of Holland. '


'rhe Orphan Chamber eonsisted of a president, four
members, a secretary, and several clerks. 'rheir emolu-
ments arose from a per centage of~~ per cent. on the amount
of aH property coming under their administration, and from
sums of money aecruing fl'om the interest of unclaimed
property, and the compound interest arising from the un-
expended incomes of ol'phans during theil' minority.-~
Bal'row's Account of Southern Africa. 'rhis chamber is
now aboJished, see tbe Charler of Justiee, post, 483.


By their laws of properíy the estates and moveables of
two persons elltering into matrimony beeame a joint ,stock,
of which each party had an equal participation, and OH
the death of either the childl'ell were entitled to that part
of the joint stock which belonged to the deceased, unless
it was otherwise disposed of by will, which was ollly
permitted undel' eertain l'estrietions and limitations.


A "Supl'eme Court of the colony of the Cape of Good
Hope" has been esta blished by charter (see post.) 'rhe
salary of the Chief Justice is síated in the Cape Almanack
to be cf~500, that of the p'uisne JllClges o€1500 each:-


lnsolt:ent Law.
Ordinance 64, passed August 6th, 18Q9.


Sect.4. Any person depal'ting, 01' remaining absent from
the colony, 01' departing from his dwelling, 01' otherwise
absellting himself with intent to defeat 01' delay his cre-
ditors, 01' not satisfying a sentence, 01' not pointing out
sufficient property fol' its satisfaction, 01' when sufficicnt
cannot be found, 01' making any fl'audulent alienation,
transfer, gift, cession, delivery, mortgage, 01' plcdge of any
of his effects, shall be considered insolvent.


16. Creditol's of a company may petitioll against aH, Ol'
one, 01' more of the partners; but tbis is not to prevent
the creditors of a company from procceding against any
partner thcreof in respect of debts due by such company.




CAPE OF GOOD HOPE. 473
W. Orders fOl" sequestration are to be forthwith lodged


at the shel'iff's office fOl" registration; whereupon the
master, if the order has been made nt the instance of
creditors, shalI 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 place s of abode of his creditors.


9.4. Petitioning creditors may, on obtaining orders fol'
sequestration, cause the debtol' to be summoned before
the Supreme Court, to show cause why his estate shouId
not be sequestered.


26. In case of unfounded, vexatious, or malicious peti-
tions, the conrt may, on pl'oof, award damages, or leave
the party to his action.


29. After order for sequestration, aH judgments shalI be
stayed, but creditors may in such cases prove for both
debt and costs; and property attached, but not sold, shaIl
be placed undel" sequestration, and the person holding
the judgment shaIl be, entitled to snch preference over the
proceeds as by law is cl"eated over such property in vir-
tue of the attachment.


30. After order for sequestratioll, aH 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 or paid on either side.


38, No person whose debt depends upon a contingency
or condition, shall be entitled to petition 01' vote in the
choice of trustees 01' othcrwise, so long as the contingency
shalI nothappen 01' the condition shaIl not be performed.


39. In case of absence of a cIaimant from the colony, 01'
in any other case where the court is of opinion that the
debt can eventuaIly be proved, it may allow such cIaim to
be entered on the proceedings, give reasonable time for
llroof, 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 agreement, &c. made by an insolvent in order


to obtain the signa tu re of creditors, is nuIl and void.
93. A trustee becoming insolvent, and being indebted


to the esta te fOl" which he was trustee, shall not be dis-
charged therefrom by obtaining his certificate.


S/teriff.
The officc of high-shel'iff was originaUy creatcd on the




474 CAPE OF GOOD HOPE.
1st January, IS28, under the provisions ofthe royal ehartel'
rOl' 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 sheriff's duty is to
carry into execution aH the sentenees and deerees of the
Supreme or Circuit Courts. :For this purpose he is di-
reeted to appoint a deputy-sheriff for eaeh of the country
districts throughout the colony, for whose conduct in aH
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 thero.


By rule 143, seco '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 all his rcceipts and pay-
ments by virtue of his saia office during the quarter of a
year next preceding the same term, and specifying in such
statement what sums then remain in his hands, and on
what account, and for whom the same were received by
him, and thereupon the said sheriff shall be entitIed 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 court, at
all reasonable times, to inspect the same and to take ex-
traets therefrom without fee."


Court 01 Vice-Admiralty.
This COUl't consists of one Judge, who is generally the


Chief Justiee of the eolony.


Police Court.
This court is held before the J udge of Police and Re-


sident Magistrate of Cape Town and tbe Cape District.
The salary is .;eSOO.


Recover!! 01 Small Debta in tIte Cape District.
To recover any sum under .:EZO reeotll'se must be had


to the Court of the 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 or 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 Distriet.
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 onIy.


-


Extraet from Patents of the Second Year if the Reign
01 King William the Fourth.


CHARTER FOR SUPREME COURT OF JUSTICE AT THE CAPE
OF GOOD HOPE.


WILLIAM the FOURTH, by tlle grace of God, of the Unitcd Kingdom
of Great Britain and lreland King, Defender of tlle Faitll. To aH
to whom tIlese presents shall come greeting: Whereas it is expedient
to make provision for t11e better and more effectual administration of
justice in our colony of the Cape of Good Hope, and in tlle several
territories and settlements dependent thereupon, and fol' that purpose
to constitute within our said colony and its dependencies one Supreme
Court of Justice, to be holden in the manner and form hereinafter
mentioned. No'V kno'V ye, that we of our special grace, certain kno'V-
ledge, and mere motion, have thought fit to grant, direct, order, and
appoint, and by these presents do accordingly for us, our heirs and suc-
cessors, grant, direct, order, and appoint, that there shall be within OUl'
said colony of the Cape of Good Hope a Court, which sbaIl be called
"Tbe Supreme Court of the Colony of the Cape of Good Hope." And
we do hereby create, erect, and constitute the said Supreme Court to be
a Court of Record. And 'Ve do further wilI, ordain, and appoint, that
the said Supreme Court of the colony of the Cape of Good Hope shalI
consist of and be holden by and before one Chief Justice and two Puisne
Judges, and that the said Chief Justice shall be called and known by the
name and style of "The Chief Justice of the Colony of the Cape of
Good Hope;" and which said Chief Justice and Puisne Judges shall
be rcspectively barristers in England or Ireland, or advocates admitted to
practise in oul' Courts of Session of ScotIand, or in the said Supreme
COUl't. And which said Chief Justice and Puisne Judges §ball from




476 CAPE OF GOOD HOPE-CHARTER OF JUSTICE.
time to time be nominated and appointed to such their offiees by US, our
hcirs and successors, by letters-patent under [he public seal of the said
colony, to be issued in pursuancc of any warrallts or warrallt, to be from
time to time for that purpose granted by US, oul' heirs and successors,
un del' our or their sign manual. And we do hereby declare, ordain, and
grant, that upon the death, resignation, sickness, or incapacity of the said
Chief J ustice or any of the said Puisne J udges; or in the case of the
absenee of any of them from the said eolony, or in case of any such sus-
pension from office as hereinafter mentioned, of auy such Chief J ustice
01' Puisne Judge, it shal1 and may be lawful to and for the Governor of
our said colony for the time being, by letters-patent, to be by him for
that purpose made and issned under the publie seal of the said colony, to
nominate and appoint sorne fit and propel' person or persons to act as and
in the place and stead of any sueh Chief J udge or Pnisne J udge so
dying or resiguing, 01' labouriug under such sickness or ineapacity as
aforesaid; or being so absent as'aforesaid from the said colony, or being
so suspended, until the vacaney or vacaneies so rrealed by any sueh dcath
01' resignation, or sickness, 01' incapacity, 01' absence, 01' sllspension, shall
be supplied by a new appointmellt, to be made in maunel' aforesaid by
us, our heirs and successol'S, or untij the Chief J usticc 01' Puisna J udgc
so becoming sick, or incapable, or being absent, 01' suspended as afore-
said, shall resume such his office, and enter into the discharge of the
duties thereof. And we do further will, ordaill, and grant, that the said
Chief J ustiee and Puisne J udges shall hold such their offices during their
good behaviom. Provided nevertheless, that it shall and may be lawful
for the Governor of onr said colony for the time being, by any order or
orders to be by him for that purpose made and issued under the public
seal of the said colony, with the advice of the executive council of go-
vernment of the said colon y, or the major part of them, upon proof of
the misconduct of any such Chief J ustice 01' PUiSllC J udge as aforesaid,
to suspend !tim from such !tis office and from the discharge of the duties
thereof, provided that in every such case the said Governor shall imme-
diatcly report for our information, through one of our Principal Secre-
taries of State, the grounds and causes of such suspcllsion. And we do
hcreby reserve to ns, om heirs and successors, full powel' and anthority
to confirm or disallow such suspension from office as aforesaid of any
Buch Chief Justice or Puisne Judge. And we do hereby further reserve
to US, our heirs and successors, fuI! power and authority, upon sufficient
proof to our or their satisfaction of any snch miscondnct, to remove and
displace any such Chicf J Llstice 01' Puisnc J udgo from sllch his offiee. And
we do hereby give and grallt to Ollr wid Chicf J ustice for the time being
rank and precedence above and before all our subj ects whomsocver within
the said colony of the Cape of Good Hopc and the territories and places
dependent thercupon, cxcepting the Governor or Lieutenant-Governor for




CAPE OF GOOD HOPE-CHARTER OF JUSTICE. 477
the time being thereof, and tbe Commanaer-ill-ehief of our forees for the
time being within the same, ana excepting all sueh persons as by law or
nsage in England take place before our Chief J ustiee of our Court of
King's Bench. Ana \Ve do hereby give and grant to the said Puisne
J lldges for the time being l'ank and p1'cecdence within our said colony cf
the Cape of Good Hope and the territorics and places dependent there-
upon, next after onr saiel Chief J ustice of ou1' said colony for the time
bcing. And we do hereby declare, that the said Pnisne Judges shall
take rank and preceelence between themselves according to the priority of
their appointments respectively. And we do fu1'the1' grant, ordain, and
appoint, that the said Supreme Conrt of the colony of the Cape of Good
Hope sha1l have and use, as occasion may reqllire, a seal bearing a device
ana impression of our royal arms within an exergue or label surrounding
the same, with this inscription, "'fhe Seal of the Supreme Court of the
Cape of Gooa Hope." And we do hereby oraain, grant, and appoint, that
the saia seal sha1l be delivered to and 8ha1l be kept in the custody of the
said Chief Justice, with fu1llibe1'ty to delivel' the same to any Puisne Judge
of the said court for any temporary purpose; and in case of vacancy of 01'
sllspcnsion from the ofiiee of Chief J ustice, the same sha1l be delivereel
over to and kept in the custody of such person as shall be appointed by the
said Governor of OUl' said colony to aet as and in the place and stcad of
the said Chief Justice. And we do further grant, ordain, and declare,
that the said Chief J ustiee and the said Pllisne .J udges, so long as they
shall hold their offices respectively, sha11 be cntitled to have and receive
such salaries as shall be granted to them by us, our heirs and successors,
which salaries sha11 be in lieu of aU fees of office, perquisites, emolu-
ments, and advantages whatsoever; and that no fee of office, perquisite,
emolument, 01' advantages other than and except the said salaries sha1l
be accopted, received, 01' taken byany sueh Chief Justice 01' Puisne Judge
on any account or any pretence whatsoever. Ana we do further ordain,
appoint, and declare, that no such Chief Justiee or Puisne Judge as afore-
said, 8ha1l accept, take, or perform any other office, place of profit or
emolument within our said colony; and that the aeceptance of any such
other office 01' place as aforesaid, sha1l actually vacate and avoid sueh bis
office of Chief Justice or Puisne Judge, as the case may be, and the
salary thereof shall eease accordingly from the time of the acceptance of
any such other office 01' place. And we do hereby ordain, appoint, and
declare, that there shall be attached and belong to the said court the fol-
lowing officers (that is to say), one officer to be styled the Registrar or
Prothonotary and Keeper of Records of the said Court, and one other
officer to be styled the Master thereof, together with such and so many
other officers as the Chief J ustice of the said court fOl" the time being
slla1l from time to time appear to be necessary for the administration of
justiee, alld the due execution 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 shalI be created in the said
court, unIess the Governor of the said colony Ol' Lieutenant-Governor for
the time being shalllh'St signify his approbation thereof to the said Chief
J ustice for the time being in writing under the hand of slIch Go\'emor or
Lieutenant-Governor. And we do furthel' ordain and directo that an
persona who shall and may be appointed to the offices of Registrar or
Prothonotary and Keeper of Records or Master of the said comt, aud
that aIl persons who shaIl be appoiuted in the said court to any offices of
which the duties shaIl correspoud to those performed by the Master Ol'
Pl'othonotary of any 01' either of our Courts of Record at Westminster,
shall be so appointed by us, our lIcira and suceessors, by warrant under
om or tlleir royal sign manual; and that aU persons who ahaU and may
be appointed to any other office within tlle said Supreme Court, shall be
so appointed by the Governor fol' the time being of the said eolony.
And we do further direct and appoint, that the said several officers of
the said court other than and except the said Chief J ustice and Puisne
J udges thereof, shan hold their respective offices therein during the
pleasure of UB, 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 eurol such personB as shall have been ad-
mitted as barristers in England or Irelaud, or advocates in the Court of
Session of Sootland, or to the degree of doctor of laws at our Univer-
sities of Oxforo, Cambridge, or Dublill, to aet as barristers or advocates
in our said Supreme Court. And we do further authorize and empower
the said Supreme Court to admit any persons to pl'actise as barristers and
advocates therein, who previously to the promulgation oc' these presents
within the said colony have beea actually admitted to practise as advo-
cates ia 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 emol, any persons being attornies or solici-
tors of any of our Courts of Record at Westminster or Dublin, 01' being
proctors admitted to practise in any Ecclesiastical Comt in England 01'
Ireland, 01' being writers to the signet in Seotland, or being now entitled
to practise as proctors or notaries i a the said Supreme Court of J nstice
heretofol'e existing within the said colony, to aet as attornies, solicitors, or
proctors, in the said Supreme Court of the colony of the Cape of Good
Hope. And we do fUl'ther authorizc our said Supreme Court to approve,
admit, and emol, as snch attornies, solicitors, 01' proctors as aforcsaid, such
and so many persons as may be instructed within our said colony in tlle
knowledge and practice of the law, by any halTister, advocat!', attorney,
solicitor, or proctor, dulyadmittcd to practise in the said court, and which
persons shall be so approved, admitted, and enrolled accol'ding to aud in
pursuance of any general rule 01' rules of court to be for that purposa




CAPE OF GOOD HOPE-CIIARTER OF JUSTICE. 479
made in manner hereinafter directed. And wc do orJain and declare,
that persons approved, admitted, and enrolled as aforesaid, sbaIl 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 thoir station therein upon reasonable cause.
And we do furtber ordain, that no person or persons whatsoever not so
approved, admitted and enrolled as aforesaid, shaIl be allowed to appear,
plead, or aet in the said Supreme Court for or on behalf of any suitors
in the said court. Provided always, and we do further ordain and de-
clare, that the functions and office of barristers and advocates shall not
be discharged in the said court by the attornies, solicitors, and proctors
thereofj and that the functions and office of such attornies, solicitors,
and proctors, shaU not be dischargcd by such barristers at law or advo-
cates. Provided nevertheless, and we do further declare our will to be,
that in case there 8han not be a sufficient number of barristers and advo-
cates within the said eolonyeompetent and willing to act for the suitors of
the said court, the said court sha11 and is hereby authorized to admit
any of the attornies, solicitors, or proctors thereof, to appear and act as
barristers and advocates during tbe time of sueh insufficiency only j
and in case there shall not be a sufficient number of attornies, solicitors,
and proetors within the said colony competent and willing to appear and
act in that capacity for the suitors of the said court, tbe said Supreme
Court shaIl and is hereby authorized to admit any of such barristers or
advocates to practise and aet in the capacity of attornies, solicitors, and
proctors, during the time of such insufficiency onIy. And we ordain
and declare, that the Govemor for the time being of the said colony of
the Cape of Good Hope 8ha1l, on the first Monday in the month of Ja-
nuary in eaeh year, by warrant under his hand and seaI, nomina te and
appoint some nt and proper person to act as snd be the Sheriff for our
said eolony of the Cape of Good H ope and its· dependencies for the year
ensuing, whieh Sheriff, when appointed, slm]], as sgon as conveniently
may be, and before he shaIl enter upon his said offiee, take an oath faith-
fully to exeeute tlle duties thereof, and the oath of allegianee before the
said Governor, who is hereby authorized to administer the same. And
we do direct, that the said Sheriff sllall continue in such his office during
the space of one whole year, to be computed from the said nrst Monday
in the month of Jannary, and until another shall be appointed and
swom into the said office; and in case such Sheriff shaIl die in or re-
sign his said offiee, or depart from our said colony of the Cape of Good
Hope cluring the period of his office, then another person shall as 800n
as conveniently may be after the death, resignation, or departure of such
Sheriff, be in like manner appointed and swom as aforesaid, and shall
continue in his office for the remainder of the year, and until another
Sherifi' shalI be cluly appointed aud sworn into the said office. And we




480 CAPE OF GOOD HOPE-CHARTER OF JUSTICE.
do further order, direct, and appoint, tbat the said Sheriff for tbe time
heing sball, by himself 01' his sufficient deputies, to be by him appointed
and duly authorized under his hand and seal, and for wbom he shall be
respollsible during his continuanee in such offiee, execute, and the said
Sheriffby himself and his said deputies are bereby authorized to execute,
aU the seutenees, deerees, judgments, writs, summonses, rules, orders,
warrants, commands, and proeesses of the said Supreme Comt of the
Cape of Good Hope, 01' of the Circuit Courts of thc said colony hel'eafter
mentioned; and shall make a return of the same, together with the
manuel' of the execution thereor, to the Suprcme Court of the Cape of
Good Hope, 01' to the said Circuit Comts, as the case may be; and shall
receive and detain in prison all such persons as shall be committed to
the custody of such Sheriff by the Supreme Comt of the Cape of Good
Hope, 01' by the said Circuit Courts, 01' by the Chief Justice, 01' by any
other judge of the said courts. ,And we do fmther authol'ize our Gover-
1101' for the time being of tbe said colony of the Cape of Good Hope in
each succeeding year to re-appoint the same person to fill the office of
sheriff, if it shall appear to our said Governol' expedient so to do. Pro-
vided neverthcless, and we do hereby require on\" said Governor in the
selection of any person to fiJI the said office of Sheriff of the Cape ofGood
Hope, to confonn himself to such dírections as may from time to time
be givell in that behalf by us, our heirs and snccessors, through one of
our or their Principal Secretaries of State. And we do further direct,
ordain, and appoint, that whenever the said Supreme Court of the Cape
of Good Hope, or the Circuit Courts hereinafter mentioned, shall direct
or award any process against the said Sheriff, 01' award al1y process in
any cause, matter, 01' thing, whereill the said shel'iff, on account of his
being related to the parties 01' any of them, or by reason of any good
cause of challenge which would be allowed agaiust auy Shcriff in Eng-
land, cannot 01' ought not by law to execute the same, in cvery snch case
tlle said Supreme Court of the colony of thé Cape of Good Hope, 01' the
said Circuit Courts, as the case may be, shall name and appoint sorne
other fit person to execute and return the same; and the said process
shall be directed to the person so to be named for that purpose, and the
cause of sucb special proceedings shall be registered and entered on the
records of the said courts respectively. And we do hereby further ordain,
direct, and appoint, that the said Supreme Court of the colony of the Cape
of Good Hope sllall have cognizallce of aU pleas and jurisdiction in aJI
eanses whether civil, criminal, or mixed, arising within the said colony,
with jurisdiction over our subjects and a11 otherpersons whomsoever
residing and being within the said colony, in as full and ample manner
and to all intents and purposes as the Supremo Conrt of J ustico now
existing withiIÍ the said colony now hath 01' can lawfully exercise the
same. And we do further give and grant to the said Supremo Court of




CAPE OF GOOD HOPE-CHARTER OF JUSTICE. 481
the colon y of the Cape of Good Hope full powcr, authol'ity, and juris-
diction, to apply, judge, and determine upon, and according to the laws
now in force within our said colony, and al! such ot11er laws as sha11 at
any time hereafter be made and established for t110 pea ce, order, and
government thereof by US, our 11eirs and successors, with the advice and
consent of Parliament, or in our or 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
COllrt fuU powc!", jurisdiction, and authority, to review t11e proceedings of
aU iuferior courts of justice within OU1" said colony, and if necessary to
set aside or correct the same; and in the exercise of such jurisdiction,
powers, and authorities as aforesaíd, our will and pleasure is, that the
pleadings and proceedings of the said Supreme Court and the said Circuit
Courts 8han be camed on, and the 8entences, deerees, judgments, and
ordcrs thereof, pronounced and declared in open court, and not other-
wise, and that the several pleadings and proceedings of the said courts
shaIl be in the English language; and that in aU criminal cases the
witncs$es against and for any accused porson or persons shall deJiver
theír evidence vivá vace and in open court. And we do further wiIl,
direct, and appoin t, that for the conduct and decision of a11 civil suits,
actions, and' causes depending before the said Supreme Court, and of
aU questious, matters, and thillgs arisiug in the course of any such civil
sllits, actions, or causes, any two of the judges of the said Supreme Court
shall form a quorum, and sha11 be competent to execute all and every the
powers, jurisdictions, and authorities hereby granted to and vested in tlle
said Supreme Court; and t11at in the event of any difference of opinion
betw'een such two judges, the decision of the said court shall in any such
case be suspended nntil a11 the three judges shaU be present, and the
decision of Buch three judges when unanimous, or of the majority of such
three judges in case of any difference of opinion, shall in all cases be
deemed aud taken to be the decision of the whole conrt. And we do
further ordaiu, direct, and appoint, that in any criminal case depending
before tIle said Supreme Court the trial of the person or persons aecused
ahaIl be before any one or more of the judges of the said eourt and
ajury(5) of nine men, who 8ha11 concnr in every.verdict to be given on


(5) The following was the jury
law of the colony uoder an ordinance
issued in pursuance of the charter of
1827.


"Ordinance of his Honaur the
Lieutenunt·General in Council for
determining the qualíficatíon of pero
sons to serve on grand and petit ju-
ríes, und the mode of making out and


returning lists oí the same." Passed
February 4, 1828.


Sect. 1. Whereas by His MostGra-
cious Majesty's charter, bearing date
the 24th day of August, 1827, it is
ordained, directed, and appointed,
tliat in any criminal cause depending
before the Supreme Cour! of this co-
lony, tbe trial of the party or parties


1 1




482 CAPE OF GOOD HOPE-CHAnTER OF JUSTICE.
the trial of any snch nccuse¡l party 01' parties j and every such verdict
shall be <lelivered 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 pcrson withln
the said colony who muy be otherwise competent to serve on any snch
jury as aforesaid, shall be or be taken to be incompeteIlt to serve OIl such


accused shall be before one or more
of the judges of the said court and
a jury of nine men, who shall concu!'
in every verdiet to be given on the
trial of any such accused party or
parties. And whel'eas by the said
charter it is álso directed, that aH
crimes and offences cognizable in the
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 o~ any
crime or offence before any of the S3 id
Circuit Courts nine good and lawful
men, being duly summoned, shall not
appear to form a j ury, then and in aH
such cases such trial shalI be had
before the judge and any number of
the jmy who shall appear, not being
less than six, who shall be sworn, and
8haIl have the same power as if the
usual number of nine had appeared:
now, therefore, in pursuance to the
powers and directions aforesaid in the
said charter containcd, be it enacted
by his Honour the Lieutenant-Gover-
nor in Council, that from and after
the passing of this ordinance, every
man, except as hereinafter excepted,
betweeen tbe ages of 21 :md 60 years,
residing within the colony and it~ de-
pendencies, who shall have the posses-
sion of any land situated within this
colony, held on perpetual quit-rent or
on loan, and for which he is liable to
pay an annual l'ent of not less than
one pound seventeen shiIlings and si x-
pence sterling, or of freehold land of
the same annual value, 01' who shalJ
be liable to pay in Cape Town and
the district thereof a sum not less th an
twenty shillings sterling, and in any
and every other part of this colony
a sum no! less than· firteen shillings
sterling for or on aceount of taxes
already imposed or hereafter to be im-
posed by any law or ordinance, shall
be qualified aud shall be liable lo


serve on juries in all criminal casls in
Ihe Supreme and Circuit Courts, ~uch
cases being triable in the district re-
spectively in which every man so qua-
lified .hall reside.


2. Provided always, and be it fur-
ther enacted, that aH judges of the
Supreme Court, al! c1ergymen in holy
orders, al! priests of the Roman Ca-
tholic faith, all persons licensed to
teach or preach in any congregation
assembled for religious worship, all
altamies and proctors duly admitted
by the Supreme Court or Court of
Vice-AdmiraIty, and actually practis.
ing, all officers of any courts of supe-
rior or inferior jurisdiction, exercising
the duties of their respective offices,
aH gaolers and keepers of houses of
carrcction, aIl persons duly admitted
to practise as physicians, Burgeans, or
apothecaries, and actuaUy practising,
all officers in his Majesty's army and
navy on fuU pay or in active employ-
ment, all persons em~loyed in the
civil service of his MaJesty's govern-
meDt in this colony, and aIl field-cor-
nets, sheriffs' officers, cODstables and
clerks, shall be and are hereby abso-
lutely freed and excepted from being
returned and from serviDg upon any
jury whatsaever.


7. And be it further enacted, tha!
no person shall be put on trial on any
indictment at any criminal session of
the Supreme COUl't, uoleas the bill
shall first have been presented to a
grand jury, and shall have been re-
turned lly them a true hill.


8. And be it fmther enacled, thal
every such grand jury shall cansis! of
not more than sevcnteen men, and not
less than nine men, hetwcen the ages
of 21 alld 60 ycars, of goorl fame anrJ
condition, posscssing property in lan,l
or houses within Cape Town of the
value of ,í2000 sterling.




CAPE OF GOOD HOPE-CHARTER OF JUSTICE. 483
jury by reason of his ignorance 01' supposed ignol'ance of the English
language. And we do fUl'thel' ordain and direct, that aU the duties
heretofore performcd by tlle Ol'phan Clmmbel' within our said colony,
shaIl hencefol'th be performed by the Master fol' the time beillg of the
said Supreme Court, and tbat the said Orphan Chamber shaIl be and the
same is hereby abolished. And we do fmthel' dil'ect ana appoint, that
the said Supreme COUl't sha1l at a1l times be holden at Cape Town in
oul' said colony. And we do further Ol'dain and direct, that it shall and
may be lawful fol' the Governor of the said co)ony by auy proclamation
01' pl'oc)amations, io be by him fol' t11at purpose issued, to apportiou and
divide the said colony into two 01' more distlicts, and to fix and ascertain
the boundaries and limits of every auch district, and such boundaries and
limits from time to time to alter as occasion may require. Provided
always, that such apportionment of the said colony iuto such distncts as
aforesaid be made in such manne!' as tosuch'Governor may appear to
be best adapted for cllabling the illhabitants of the said cololly to reS01't
with ease and convellience to the Circuit Courts to be therein established
as afier mentioned. And we do further grant, ordain, and appoillt, that
courts to be caIled Cil'Cllit Courts shall be holden twice at the least in
aaeh year in eaeh of the districts into which the said colony may be so
divided as afol'esaid, and eaoh of the said Circuit Courts shaIl be holden
by the Chief J Llstice, 01' by one oí the said Puisne J udges of the said
Supreme Court of the colony of tIle Cape of Good Hope, at sueh times
and at sueh one or moro place 01' places within each of the said dismets as
the Governor of the colony of the Cape of Good Hope shall from time to
time direet and appoiut. And we do further direct aud appoint, that each of
the said Circuit Courts shall be respectively Courts of Record, snd shall,
within the district in which it may be holden, have and exercise aU such
and the same jurisdietion, powers, and authority as i8 hereby vested in
the said Supreme Court of the colony of tlle Cape of Good Hope
throughout the whole of the said eolopy; and that all cnmes and of-
fenees cognizable in the said Circuit Courta sllall be inquired óf, hoard,
and determined by the said Circuit Judge and a jury of nine men, and
that the verdiet of sueh jury shall be prononnced and recorded in the
mauner before directed respecting the verdicts of junes to be given in
tbe said Supreme Court; and that the provision hereinbefore contained
rcspecting the ignoranee 01' aupposed ignorance of the English lallguage
of any person otherwise competent to serve on any jury in the said Su-
p~me Court, shaIl also extend and apply to persona serving or who may
b.p required to serve as jurors in the said Circuit Courts or any of them.
Provided nevertheless, and we do further ordaín and direct, that if upon
the tria! of any crime 01' otrence before any of the sahl Circuit Conrts
nine good and lawful men, being duIy summoned, shall not appear to
forro a jury, then and in all sucb cases such tria! shnll be had before the


J 1 2




484 CAPE OF GOOD HOPE-CHARTER OF JUSTICE.
Circuit Juelge and any nllmber of the jury who shan appear, not being
less than six, who shalI be sworn and have the same powcr as if the fun
number of nine had appeared. Provided also, and we do fmther direct
aud appoiut, that all civil Buits or actions depending in any of the said
Circuit Courts shall be tried and decided by the judge of such cl)mt alone
and without a jllry; and tIlat in aU cases where the sum or maUer at
¡ssue in any such suit or action shall exceed or be of the value of more
than one hundred pouuds sterliug British money, the judgc of tha said
court respectively shall cause tIle evidence on every snch hearing or triay
as aforesaid to be taken down in writing by the clerk or other prop,ér
officer in open court in the presence of tha witnesscs rcspectivcly giving
the same, and the evidence so taken shall be entered npon the proceed-
¡ngs of tlle said courts and be of recorel; and in every case in whieh any
appeal shall be made and allowed nnder the provisions of this our charter
from any judgmcnt of thc said Cireuit Courts, copies of an documenta
and papers wllich shall have bcep produced and given in evidence shall
be certified and transmitted by the said clerk or other proper officer as
authentic, and also copies of any documents and papers which shall have
been produced and tendered in evidence and rejectcd, shall, if reqnired
by the party prodllcing the same, be in like manner authenticated and
marked by such offieer as aforesaid as rejeeted, in order that aU such
copies may be annexed to the record as part thereof in case of appeal.
And we do further direct and declare, that it shall be lawful for tho
judges of the said Circuit Court respectively, on tho application of either
of the parties, plaintiff or defendant, at or befo1'e the tdal of any civil
suit 01' action cororoenced in the said Circuit Courts respectivcIy, to
permit the evidence on such tria! to be recorded and certified as afore-
said, although the sum 01' matter at issne may be less than one hund1'ed
pounels sterling, provided that it shall be made to appear to such juelge
that sueh judgment, deeree, OI-der, 01' sentence which may be given,
made, or pronouneed in such suit 01' aetion may be of sueh importance
as to render it proper that an appeal should be permitted; and if after
giving or pronouncing such judgment, decree, or order, thc said judge
shall be of opinion that such judgment, deeree, order, or sentenee is of
Buch importance as to make it proper that an appeal should be per-
mitted, it shall be lawful fo1' the said j udge to alIow eithe1' of the said
parties, plaintiff 01' defcndant, to appeal to the said Supreme Court in
like manner and nnder and subjeet to the like rules and reguIations·
as in and by this our cIlarter are directed in other cases of appeal
froro the said Cireuit Courts. And we do further direet and appoint,
that it shall be lawful for the plaintiff 01' plaintifrs, defendant or defend-
ants, against whom any scntenee, juelgment, 01' decree or order of t!Jo
said Circuit Courts respectively shall be given, fOl" or in respect of any
Eum 01' malter at issue above or exeeeding the value of one hundred




CAPE OF GOOD HOPE-CIIARTER OF JUSTICE. 485
pounds sterling, to appeal therefl'om to the said Supreme Court; and
the party or parties appealillg from sueh selltp.llce, judgment, dcerce, 01'
order, shall within fourteen days from thc passillg thereof give notiee to
the adverse party 01' parties of sueh appeal, and within fonrteen days
from and aficr sueh sentenee, judgment, deeree, 01' order, enter into
suffieient seeurity, to be approved by the judgc of the said Circuit Comts
l'espeetiveIy, to satisfy and perform the said judgment, deeree, 01' order,
in case the same shaIl be affirmed 01' the appeal dismissed, together with
sueh further costs as shaIl bc awarded thereon; and in all cases of appeaI
wllere notice shaIl be given and seemity perfected as aforesaid, execution
shaIl be staycd, and not otherwise; and the said Supreme Court shaIl and
may inquire into, bear, and de~ide all qucstions whether of Iaw 01' faet
arising upon any sueh appeal, but ahaIl not admit 01' receive any evidence
whieh was not tendered to the Cireult Court from whieh such appeaI
may be brought on the bearing 01' triaI of any such suit 01' action
tllerein. And we do furtller direct and appoint, that as often as any
action al' suit shaIl be brought in tbe Supreme Court 01' in either of the
said Cireuit Comts respeetively, and it shaIl be made to appear to the
court beforc which such aetíon or suit may be pending, tbat sMeh
action may be more convenicntly. beard 01' determined either in tbe
said Supreme Comt 01' in some otller of the said Circuit Courts, it shall
be lawful fol' su eh court to permit and allow such action 01' suit to be
removed to such other court, and such aIlowance shalI be certified by
the judge, together with the process and proceedings in such action or
suit, to the court into which such action 01' suit sha11 be intended to be
removed, and thereupon it sball be lawful for such last-mentioned court
and such court is hereby required to proceed in such action 01' suit in like
manner as if the same had been originally commenced and prosecuted in
such last-mentioned court. And we do further ordain and direct, tbat
no judgment or sentence, either of the said Supreme Court 01' of any
such Circuit Court as afol'esaid, in any 'Criminal case whereby any person
shall be condemned to death, 01' transportation, 01' banishment from the
said coIony, sha11 be carried into execution until a report of all the pro-
ceedings upon any such trial hath been laid before 01' transmitted to the
Governor of the said colony by the Chief Justice or Puisne Judge pre-
siding at any such trial, nor until such Governor sha11 have authorized


}ind approved the execution of such sentence. And we do further grant,
/ ordain, direet, and appoint, that it sha11 and may be lawful fol' the said


Supreme Court, by any rules or orders of court to be by them froro
time to time for that purpose made and published, to frame, eonstitute,
and establish such rules, orders, and regulations as to them shaIl seem
meet, touching and concerning the time and place of holding the said
Supreme Comt and toucbing the forms and manner of proceeding to be
observed in the said Supreme Court and Circuit Courts respectively,




486 CAPE OF GOOD IIOPE-eHARTER OF JUSTICE.
and the practice and pleadings upon al! actions, suits, and otller mal-
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 tbe mode oí executing the same, the summoning, em-
pannelling, and challenging of jurors, the admission of barristers, ad vo-
cates, attomies, and solicitors, and proctors, the fees, poundage, or per-
quisites to be lawfulIy demanded by and payable to any officers, attor-
níes, solicitors, and proctors, in the said courts respeetively, and touching
a?d concerning al! such other matters and things necessary for the proper
conduct and dispatch of business in the said Supreme and Circuit
Courts respectively, and aU such rules, ol'ders, and regulations, from
time to time to revoke, alter, amend, 01' rencw, as occasion may require.
Provided always, that no such rules, orders, and regulations shaU be
repugnant to this our charter and that the same shaU be so framed as
to promote, as far as may be, economy and expedition in the dispateh
of business of the said Supreme Court aneI Circuit Courts respecti vely.
And that aU such rules and forms of practice, process, and proceeding,
shall, so fal' as the circumstances of the said colony may permit, be
framed with reference to the corresponding rules and forms in use in
our Courts oí Record at Westminster, and that the same be drawn up
in plain, sueeinct, and comperidious terms, avoiding aU unneeessary
repetitions and obseurity, and promulgated in the most publie and
authentie manner in the said colony for three months at least before the
same sha11 operate and take effeet. Provided al ways that al! sueh rules,
orders, and regulations 8ha11 forthwith be tr3nsmitted to us, our heirs,
and successors, under the seal of the said court, for our 01' (heir appro-
bation or disallowance. And whereas it may be expedient and neces-
sary to make provision respecting the qualifications of jurors to serve in
the said courts, and the mode of enforcing the attendance of such jurors,
and it may also be expedient and necessary to make provision for the ex-
tension of trial by jury in the said Supreme Court or Circuit Courts in
civil cases: Now we do further ordain, direet, and appoint, that it shaU
and may be lawful for the Governar for the time being of our said co-
lony, with (he advíce of the Legislative Council of Government thereof,
to make and establish aH such who)esome laws, statutes, and ordinanees,
as to them may seem meet, respeeting the matters aforesaid, whieh laws,
statutes, and ordinances shaIl forthwith be transmitted to us for our
approbation or disaUowance in the manner prescl'ibcd by law respecting
aU other the laws, statutes, and ordinances made or to be made by the
said Governor, with the advice of the said Council. And whereas it
!n:tf be expedient to establish within oul' said eolony Courts of ltequest




CAPE OF GOOD HOPE-CHAltTElt OF JUSTICE. 487
and olher courts having jurisdiction in civil cases of small amount or
value, and in cases of crimos or offences not punishablc by dealh or
transportation: Now we do hereby authorize and empower the Gover-
nor fol' lhe time being of our said colon y, with the advice of the Legis-
lative Council of Government thereof, by any laws and ordin~nccs to be
from time to time made for that purpose, to ereet, eonstitute, and esla-
blish all sueh Courts of Request and other courts having jurisdiction
in civil ancl criminal cases within our saiel colony: Providecl that the
jurisdiction of such civil courts shall 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 wherein the tille to any lands or tene-
mcnts, or any fee, duty, or ofTIee, 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 saiel Governor, by and with the advice of the saicl
Chief J ustice and Puisne Judges of the said Suprcme Court for the
time being, to make, ordain, anel establish al! necessary rules, orders, or
regulations respecting the manner anel form of proceeding in any such
last-mentioned comts, and respecting the locallimits within which the
jurisdiction thereof is to be exercised, and respecting the manner and
form of carrying the judgments anel orders of such courts iuto execu-
tion, and al! such othe1' rules, orders, and regulations as may be neces-
sary fol' giving fun and perfect effect to the jurisdiction of the said
courts. And we do hereby grant, ordain, and direct, that it shall and
may be lawful for any person 01' persons, being a party or parties to
any civil suit or action elepending in the said Supreme Court of tbe
colony of the Cape of Good Hope, to appeal to us, our heirs and suc-
cessors, in OUl' or their Privy Council, against any final judgment"
decree, or sentence of the saiel court, oi against any rule 01' order made
in any such civil suit or action, having the effect of a .final 01' definitive
sentence, aud which appeals shall be made, subject to the rules, regula-
tious, and limitations following, that is to say, in case any such judg~


(6) Under the cbarler of 1827
District Caurts bad been appointed,
the jurisdietion of w hieh did not ex·
tend in lhe Cape District ta cases
wbere more than ,i20 were in dispute,
nar in otbe plaees to a larger amount
tIJan ,i 1 O. Wbaever, in Ihe Cape Dis-
triet, liad a c1aim on another far more
tban ,i20, was obliged to apply to al!
attorney at least three or four days
befo re the malter could be brougb t


inta court: If bis claim was founded
an a nole or bond already due, no
witnesses were required, and it wOllld
have been sufficicnt to submit tbe do-
cument to his 'attorney, wbo hand~d
it ta an advocate, by whom it was
sllbmitted lo lhe eourt on Tuesday,
the day appainted for sueh claims, for
provisional judgment, ",hieh ,,;as im-
mediately grallted if no une appearcd
in defclIce.




488 CAPE OF GOOD HOPE-CHARTER OF JUSTICE.
ment, decree, order, 01' sentenee shall be given,or pronouneed for or in
respect of any sum 01' malter at issue above the amount or value of
.f500 sterling, or in case sueh judgment, decree, order, 01' sentence shaU
involve directIy or indirectly any claim, demand, 01' question to or
respecting property or any civil right amounting to or of the value of
1]500 sterling, the person or persons feeling aggrieved by any s~ch judg-
ment, decree, order, or 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 successors, in our 01' their Privy
Couneil. And in case' sueh leal'e to appeal shall be prayed by the
party or parties who is or are directed to pay any sum of money or per-
form any duty, the said Supreme Court shall and is hereby empowered
either to direet that the judgment, decree, order, 01' sentence appealed
from shall be carried into executio!l, 01' that execution thereof shall be
suspended pending the said appeal, as to lhe said court may in each
case appear to be most consistent with real and subslantial justice; and
in case the said Supreme Court shall direct such judgment, decree,
order, 01' scntence'to be carried into execution, the person or pcrsons in
whose favour the same shall be given, shall, before the execution thereof,
enter into good and sufficielÍt security, lo be approved by the said Su-
preme Court, for the due performance of such judgment or order, as we,
our heirs and successors, shall think fit to make thereu pon; 01' in case
the said Supreme Court shall direct the execution of any judgment, de-
cree, order, oc sentence to be suspended pending the said appeal, the
person Of 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 sufficiént security, to be approved
by the said Supreme Court, for Ihe due performance of such judgment
or order, as we, our heirs and sucecssors, shall think fit lo make thel'e-
upon. And in a11 cases we will amI requirc thal sccurity 5ball al80 be
given by the party 01' 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 or parties respondent; and if such last·mentioned security
shall be ente red into within three months from the date of such petitions
fOl' leave to appeal, then, and not otherwise, the said Supremc Court
shall allow the appeal, and the party 01' parties appellant shall be at
liberty to prerer and prosecute his, her, or their appeal to US, Out' heirs,
and successors, in our or their Privy Council, in such manner and
under such rules as are observed in appeals made to us fl'om OUl' plan-
lations Ol' colonies. And we do hereby rcserve to ourselves, our heirs
and successors, in OUT or their Privy Council, full power and authority
\lpon the humble petition, at any time, of any person 01' persons ag"




CAPE OF GOOD HOPE-CHARTER OF JUSTICE. 489
grieved by any judgment or dctcrmillatioll of the said Supreme Court,
to admit his, her, or their appeal therefrom upon su eh other tcrms and
upon and subject to such other limitations, restrictions, alld rcgulations,
as we 01' they shall think fit, and to reverse, correct, 01' vary such jndg-
ment 01' determination as to us or them shaII seem mcet. And it is our
fnrther will and pleasure that in al1 cases of appeal allowed by the said
Supreme Court, 01' by US, our heirs and successors, the said conrt sha11
certify and transmit to us, our heirs and succcssors, in our 01' their
Privy Conncil, a true and exact t!opy of all evidence, proceedings, judg-
ments, decrees, and orders had 01' made in such causes appealed, so far
as (he same have rela(ion to the matter of appeal, such copies (o be cer-
tified under (he se al of (he said court. A nd we do further direct and
ordain, that (he said Supremc Court shal1 in all cases of appeal to us,
our heirs and successors, conform to and execute such judgments and
orders as we shall think fit to make in the pl'emises, in such manner as
any original judgment, decree, 01' decretal order, or rule, by the said
Suprcme Court of the colony of the Cape o'f Good IIope could 01' might
have been cxccuted. And we hereby strictly chal'ge and command all
Governors, Commanders, Magistrates, l\Iinisters, civil and military, and
all om liege subjects, within and belonging to tbe said colony, that in
execution of the several powers, jurisdictions, and authorities hereby
granled, made, given, or ereated, they be aiding and assisting and
obcdient in all things, as they will answer thc contrary at their peri!.
Provided always, that nothing in these presents contained, 01' any act
which shall be done under the authority thereof, shall extend 01' be 'con-
strued to extend to prevent us, our heirs and successors, from repealing
these presents 01' any part thereof, or from rnaking fl'om time lo time, as
occasion may require, such further 01' other provisions by letters.patent
for the auministration of justice, civil and criminal, within (he said
('olony and the places now 01' at any time hereafter to be annexed
thereto, as to us, our heirs and successors, shall seem lit, in as full and
ample a mauner as if these prcscnts had not been made, these presents
01' any (hing contained to the contrary therein in anywise notwithstand-
ing. Aud whereas our royal brother and predecessor, his late Majesty
King George the Fourth, by letters-patent uuder (he great seal of thc
United Kinguom aforesaid, bearing date at Westminster the twenty-
fO\lrth day of August, in the eighth year of his reign, did grant, direcI,
order, and appoint that there should be witbin the colony of tbe Cape
of Good Hope a court which should be called tbe Supreme Court of
thc Colony of the Cape of Good llopc, and it was thereby, amollgst
other things, provided that no{hing therein cOlltained should extend 01'
be construed to extend to prevent liS, our heirs, and successors from
repealiJlg the said letters-patent 01' any part thereof, 01' fl'Om making
such further or other provision by letters-patent for the administration




490 CAPE OF GOOD HOPE-CHARTER OF JUSTICE.
of justice, civil and criminal, within the said eolony and the places then
or at any time thereafter to be annexed thereto, as to US, our heirs and
successors sbould 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 a1l decrees, judgments, and sentences, rules and
orders heretofore made by the courts establishcd by, or by the judges
appointed under the said letters-patent, or by any or either of Buch eourts
or judges, and that a1l general rules, orders, and regulations of court
made under and in pursuance thereof, and that aU procIamations issued
by any Governor of the said colony in virtue thereof, and that aH laws
and ordinances promulga,ted 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, shaIl to aH intents and pur- ,
poses be as binding, concIusive, 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 colon y of the Cape of Good IIope, upon the
arriva! therein of these presents, shall by proc1amation notify to the in-
habitants of the saitl colony the time when the courts hereby established
will be open, and as soon as the judges of the said Supreme Court
shall have assumed antl ente red upon lhe exercise of their jurisdiction
therein, then and from 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 lhe said courts respectively shall bc
absolutely abolished, cease, and determine, and every suit, action, com-
plaint, matter, or thing, civil 01' criminal, which shalI be depending in
such last-mentioned courts respcctively, shalI and may be proceeded
upon in the Supreme Court instituted under and by virtue of these
presents, 01' in either of the said Circuit Courts which shaU 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 all proccedings which shall there-
after be had in such action or suit 01' other matter, civil or criminal,
respectively, shalI be conducted in like manner as if such action 01' suit
or other matter, civil or criminal, had been ol'iginaUy commenccd in one
or other of the said courts instituted under these presents, and aU thc
records, muniments, and proceedings whatsoever of and belonging to
the said Supreme Court and Circuit Courts established by the said
recited letters-patent, shaIl, from and immcdiately after the opening of
the said courts respectively instituted by these presents, be delivered
over and deposited for saJe custody in such of the said courts re-




CAPE OF GOOD 1I0rE-CIIARTEn OF JUSTICE. 4,91
spectively instituted under these pl'esents, as shall be found most con-
venient, and all pal'ties concerned shall and may have rccoursc to the
said records and proceedings as to any other records or proceedings of
the said courts rcspectively. And we do hereby further declare and
direet, that during the absenee from our said colony of the Cape of
Good lIope of the Governor thereof, 01' if there shall be no person com-
missioned hy us, our heirs and successors, to be the Governor of our
said colony, then and in cvery such case all and every the powers
hereby granted to and vested in tbe Governor for the time being of the
said eolony shall and may be executed byand vested in the Lieutenant-
Governor thereof, or the officer for the time being administering the
government thercof. In witness, &c. Witness, &c. the fourth day of
May, 1832.


By W rit of Privy Sea\.




( 4-92 )


SIERRA LEONE
WITII


THE SETTLEMENTS AT GAMBIA AND ON
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
peninsula was ceded to' His Majesty by the native chiefs,
for the purpose of affol'ding an asylum to some Europeans
and Africans, who had be en conveyed from England with
a view of fOl'ming a settlement upon this part of the coast.
This traet 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 clown this Jast to the Bunce, which
is in fact part of the Sierra Leone river. These limits
comprehencl a tract of about eighteen miles north to south,
and twelve east to west. The land is described as fal'
from fertile beyond the first season after clearing.


HISTORY AND CONSTITUTION.


'fhe colony was at first settled by blaeks who had come
to Englancl at the close ofthe American war, and had been
provided for by being eonveyed to Sierra Leone to make
a settlement dIere. This settlement was unfol'tunate.
The next was made by the N ova Seotian settlers in 1792.
They were inhabitants of the southem States of the
Uníon who had been employed in the royal army, and in
rcward for their services during the war were settled at its
close upon lands in N ova Seo tia. Thc c1imate however
so ill agreed with them, that they gladly embraced the
offcr of the company to convey them to Sierra Leone.




SIERRA I,EONE. 4·93
This settIement, however, was as unfortunate as the last.
In ] 800 the population of the colony was increased by
the accession of 550 maroon settlers. The maroon
population appeal's to have favourably settled here,
and to be on the in crease in numbers, intclligence, and
pl'osperity. At the time of the commissioners' visit sorne
of the maroon inhabitants fillcd offices of trust in the co-
lony. In 1819 sorne negroes of Barbados, who had been
concerned in an insurrectionary movement in that colony,
were brought as prisoners to Sierra Leoue, and at fil'st
kept un del' l'estraint, but subsequently they were released,
aneI they appear to have bccome useful and industrious
settlers. The llumbel' ol'iginally brought was eighty-five.
Of these thirty-foul' are known to be living, twenty-six
dead, and the remaining twenty-five cannot be accounted
fol'. Some have found employment in trade, and many
have been sought after on account 01' their knowledge of
tropical agriculture. To these four classes have be en
added the disbanded soldiers of sorne black regiments.
These men appeul' to have unwisely congreguted about
the chief seat of the colony, but the commissioners
seemed to think they would be a valuabIe addition to its
strength and importance. Great numbers of liberated
Africans have also been sent to the colon y , but on the
whole it seems that these various additions have never
been able to keep up the population at the amount to
which it was brought by theil' settlement in this colony.
This mixed population was, in April, 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 121,.


Judicial and Civil Establishments.
The institutions fol' the administration of government


and the dispensation of justice are founded on the pro-
visions of the chartel' granted in 18012 to the Sierra Leone
Company. This charter was subsequently revised, and
(w.,ith sorne alterations) confirmed first in 1808, when the
settlement was transferred to the Crown, und next in
18121, when the forts and pos se ss ion s of the late African
Company on the Gold Coast were annexed to the coIony.
-Sierra Leone Como Rep. 89.




494 SIERRA LEO NE.
The charter as last reviseu in 18521, Ql'dains 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 (or in the absence
of the Governor, tbe Lieutenant-Governor or Commander-
in·Cbief 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
sball be less tban nine, to appoint otbers, subject to His
Majesty's approval. The couneillors first named in tbe
charter are councillors ex qfficio, namely tbe Chief Jus-
tiee, the King's Advoeate, the Colonial Seeretary, and
the Surveyor of Lands. The Chief Justiee, though first
in councíl, is declared ineligible to sueeeed to tbe adminis-
tration of the govemment. The King's Advocate, as next
in order, is eonsequentIy the person to suceeed pt·o tem-
pore in tbe event of the' absenee 01' death of the Gover-
nor, unless a Lieutenant·Governor has been previously
appointed, whieh appointment may in certílÍn speeified
cases be made by the Governor. The commissioners
thought that this rule, preferring the King's Advoeate to
the chief justice as tbe temporary successor of the Gover-
nor, imperiously required altel'ation.


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 neeessary to the welfare of tbe colony, subjeet how-
ever to eertain restrietions whieh are speeified in the
charter. They have aeeordingly exercised tbis power
from time to time as cireumstanees seemed to tbem to re-
quire. The colonial enactments have generally be en pre-
pared by the King's Advocate, but in sorne instances by
other members of Couneil, and being passed after thl'ee
readings, tbey are recol'ded in the minute book and be-
come laws. It has been customary to promulgate the
orders of the executive by means of proclamations issued
by the Governor. The provisions of the Aet for the Re-
lief of Insolvent Debtors are not in force at Sierra Leone,


(1) See ante, p. 3 to 16, on tlle general topic how' far the colollies are sub·
ject to the ¡IIW oí the motber country.




sIERRA LEONE. 495
llor is there any colonial enactmcnt analogous to it. Trial
by jury is a part of the law and is advantageously in
practice. Therc are no other qualifications required than
his being an inhabitant of the colony and of sufficient age
and of good character.-Sierra Leone Como Rep. 89.


COLLECTION OF LA ws.


An attempt was lately made to arrange such laws as
are in force, with a view to thei1' being printed; the ob-
ject however was but partialIy accomplished, and there
being hut one manuscript eopy in the colony (J 8~6) few
of the magistrates have the means of referl'ing to ¡t.-id.
ih.


COURTS.


The Governor and Council constititute a Court of Re-
cord to hear and determine appeals from the Court of the
Recol'de1' 01' other Superior Courts of the Colony, and
when the matte1' in dispute exceeds the value of oC400, an
appeallies to the King in Council.


The colonial courts are as follows- the Court of Royal
Commission, the Court of Vice-Admiralty, the Court of
the Recorder of Freetown, the COUl'ts 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 othe1' courts and to issue such special com-
missions as the due administration of justice may scem
to require. The Governor has also the powel' 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,
Commissal'Y Judge of the mixed Courts, King's Advocate,
Colonial Secretary, and others specified in the commis-
sion, three of whom may form a court, one of the four
fi1'st-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 place s where no
local British jurisdiction existed. It has not often been
called ipto operation.




4·96 SIERRA LEONE.


Vice-Admimlty Court.
The Chief Justice isjudge ofthis cOllrt, which has powel'


and jurisdiction similar to those of the eorresponding
eourts in the Wcst India Islands, but since the establish-
ment of the courts of mixed eommission the business of
this comt has been very mueh reduced.


Court of tIte Recorder of Freetown.
The Chief Justice, as Recorder, presides in this conrt,


and is aided by the assistant judges appointed by the
Governor from amongst the members of Council. This
eourt is stated by the chief justice to resemble most
closely the Comt of Common Pleas in England, and to be
also a eourt 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 a&'Sistants
onIy, may constitute a court. In an cases where the
number of voices shall be. equaJ, the chief justice, 01' in his
absence, thc senior assistant judge present, has two voices.
This cou!'t i8 empowered by charter to hear and deter-
mine an civil suits, actions; 01' pleas which may happen
within the colony, 01' any of the fort8, islands, &e. subject
thereto. In a11 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
England, 01' as near thercto as circumstances will permito


Court of Quartel' Sessiolls of t!te Peace and of Oyer and
l'erminer.


The Chief Justice and two other members of Council
usualIy preside at this comt. The practice is regulatell
by that of the judges on circuit in England.


Court of Requests.
By the charter of 1821 the Comt of Requests esta-


blished by the former charter was abolished, but the Go-
vernol' was directed, with the concurrence of the CounciJ,
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 alI matters of
debt 01' damage undel' 4.os. in the same manner (as neal'
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 Governol' and Council in 1825, the
jurisdiction of the commissioners was extended to actions
amounting to 1.'10, provided that if the sum exceeded
4,Os., appeal might be had, if in Gambia 01' on the Gold
Coast, to theil' respective Courts of Common PIeas, and
in any other part of the' colony to the COUl't 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 coml21itl21ents to be in fu}} Sll.-
tisfaction of judgment. Commissioners of Requests sit
once a week at Freetown, and form what is there called a
Court fol' the Recovery of Small Debts.


The Poliee COtll't qf F,'eetown.
This court may be held twice a week before two ma-


gistrates, (a membel' of eouncil,being 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 fol' the purpose.


JUDICIAL ESTABLISHMENT.


The judicial establishment in 1826 consisted (inde-
pendently of the Governor amI Couneil) of the Chief
Justice, the King's Advocate, the Sheriff, the Clerk of
the Crown and the Recorder's COllrt, the Coronel' of Free-
town and two Practising Attornies, seven Justices in the
Commission of the Pea ce, the Mayor of Freetown and
three Aldermen, eight Commissioners of Requests, be-
sides eight District Magistrates, three of whom are Coro-
ners for tlll'ee eountry districts.


The King's Advocate.
This officer is undel'stood to be the Governor's legal


advisel', and the publie proseeutor. He also praetises as
an advocate 01' attorney in thc eourts.


KK




498 SIERRA LEONE.


Skerijf.
The sheriff is annually appointed by the Governor and


CQuncil. His duties correspond to those of sheriff in
EngJand.


Clerk cif the Crown.
This oilleer is also clerk of the Court of the Recorder,


and one of the writers in the oillee of the Colonial Seere-
tary.


Coroner.
The Coroner of Freetown was stated by the ehief jus-


tiee to have been sorne times appointed by the Governol'
and sometimes eleeted by the freeholders.


Attornies and Solicitors.
Neither of the two individuals praetising as attornies


and solicitors has been professionally educated. One is
an Ellropean, who aets as King's Advocate and Registrar
of the Viee-Admiralty Court; the other a person of co-
Jour, born and ~ducated in ~ngland, and engaged in mer-
cantile pllrsuits.


Justices.
One of the seven justices is a military oilleer; the other


six hold civil situations undel' the government.
The Mayor and Aldel'men of Freetown are appointed


hy the Governol' and Counci1.
Of the Commissioners of Reqllests three are magis-


trates and five are persons engaged in trade.
The district mllgistrates, 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 fol'
the town of Bathmst.




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 Cummissioners of Requests.


Since the formation of the settlement only two Courts
of Oyer and Terminer and General Gaol Delivery have
been held, at which Mr. Rendall, the Chief Justice of
Sierra Leone, acted as president.-Rep. Como Sierra
Leune, Gambia, House of Commons' Papers, ~9th June,
18Z7, No. 552.


GOLD COAST.
No di .. tinct 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 tbe Fourth.


GEORGE the Fourth, by the grace of God, of the United Kingdom of
Great Britain and Ireland King, Defender of tbe Faith, to all to whom
these presents shall come, greeting: Whereas by an Act of Pal'liament
made and passed in the tbirty-first year of tbe reign oC bis late Ma-
jesty King George lhe Tbird, our dearest father, intituled, " An Act fol'
establislJing a Company for carrying on Trade between the Kingdom of
Great Britain and the coasts, harbours, and countries of Africa, and fol'
enabling tIJe said company to hold by grant from His Majesty, bis
heirs, and. successors, and from the native Princes of Africa, a cel'tain
district of land, commonly called the Peuinsula of Sierra Leone, now
vested in his lVIajesty 01' belonging lo the said princes, for lhe better
enabling the said company to carry on the said trade," it was, amongst
other Ibings, enacted, Ihat tho¡¡ several pel'sons therein named and
described should be and they were thereby created one distinct and
separate body politic and corpol'ate, by the name 01' style of" The
Sierra Leone Company;" and it was al80 enacted, that it should be
lawful for his said late Majesty, his heirs, and successors, to make unto
the 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 or district of
land situate and being at Sierra Leone, on the coast of Africa, and
commonly called Of known by the name or description of "The Pe-
ninsula of Sierra Leone," as then aIread y might have or should there-
afler by any grant, purchase, or cession from any of the kings, princes,
or chiefs having right therein, become vested in his said late Majesty,
his heirs, or successors, \Vith power and liberty to and for the said
company to purchase of and from aU kings, princes, and chiefs, or
other powers having right to make sale thereof, so rnueh land as should
inelude the whole traet or distriet so cornmonly called or known by the
name of the Peninsula of Sierra Leone as aforesaid, bounded as therein-
after mentioned; to hold 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 take place and have continuanee
from the 1st day of July, 179i, for the term of thirty-one years, and
fIOm thence to the cnd ofthe next session of Parliament: And whereas
the said company, in pursuance of the said Act and immediately after
passing the same, did raise a large capital of stock, and did enter upon
the business and undertakings for whieh (hey were ineorporated, and
did also purchase from the natives of Sierra Leone aforcsaid a part or
district of the said peninsula, and form a very considerable establish-
ment for their officers, 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 productions of
Africa: 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 Parliarnent is specified; and further to grant
unto them certain powers, pl'ivileges, and franchises for the government
of the said peninsula, and for the effectual administration of justice in
civil causes, and for the trial and punishment of crimes 01' misdemeanors
committed there, 01' in the said company's other factories and settle-
ments, suggesting that the granting of such powers unto the said
company would not only conduce to the welfare of the said peninsula,
but would also tend (as tltere was great reason to believe) to advance
the national interests on the continent of Africa: And wbereas his said
late Majesty having considered lhe premises, did by virtue and in pur-
suance of the said recited act, and of his own special grace, cerlain
knowledge and mere motion, give and grant, by lctlcrs-patent under the
great seal of Creat Dritain, 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 company, tbeil" suecessors, and assigns, under lhe
reservations, limitaliOD3, and decJaralions thereinafter expressed, aH and




SIERRA LEONE-CHARTER OF JUSTICE. 501
eve1'y sueh part and parts of al! that traet and district of laml, situate
and bcing at S"ierra Leonc, on the coast of Afriea, and commonly
called 0\' known by the name 01' deseription of" The Peninsula of Siena
J~eone," as already had by any grant, purchase, 01' cession from any of
the kings, princes, or chiefs having right therein b~come vested in his
said late Majesty, his heirs, and sueeessors, together with al! the soils,
grounds, havens, ports, gulfs, and bays, mines, minerals, preeious
stones, quarrics, woods, rivers, waters, fishings, as well royal as other
fishings, pearls, commodities, jurisdictions, royalties, franchises, pri-
vileges, and pre· eminences within the same, and the preeincts thereof
and thereunto in any sort belonging or appertaining, and whieh his said
late Majesty, by his letters-patent, might 01' could grant, and in as
ampka manner as his said late Majesty or any of his royal progenitors
had hitherto granted to any company 01' body politic or corpoTate, 01'
any other persou or persons whomsoever, al1d in as large and ample a
manner as if the same were there particularly mentioned and expressed;
and elid further give and grant unto the saiel company, their sueeessors,
and assigns, fnll POW€I', liberty, and privilege to purchase of and from
al! kings, princes, and chiefs, 01' other powers having right to make sale
thereof, so mueh land in aeldition therelo as should incluele the whole
traet or elisll'ict commonly callEJ 01' known by the name of" The
Peninsnla of Sierra !.eone" as aforesaid, as the same was bounded on
the north hy the river Sierra Leone, on the south by the river Cara-
manca, on the east by the river Bruce, aud on the west by the sea; to
have, hold, and enjoy the same peninsula, and the whole use, property,
and possession thel'eor, unto the said company, their successors, and
assigns, to be holden of his said late Majesty, his heirs, and successors,
as of his manor of East Gl'eenwieh, in the county of Kent, in free and
common socage and not in capite, yielding and paying therefore to his
said late Majesty, his beirs, and sueeessors, the reot or sum of ten
shillings of lawful money of Great Brita~n, on the 1st day of September
yearly, aH which lands, eountries, and premises thereby granted or
mentioned, 01' intended so to be, his said late majesty did by the said
letters-patent make, ereet, and creale one independeut and separate
eolony, by the name of " The Colony of Sierra Leone ;" and did further
for himself, his hcirs, aod successors, grant unto the said company aud
their suecessors, and did by the said letters-patent or charler of justice
ortlain, will, and establish that lhe Court of Directors of the said com-
pany, assembled for that purpose, should and might make, enacl, anel
declare laws, statutes, anel orelinances fit and nec€ssary for anel con-
cerning the government of the said colony, and that the same should be
in fulI force and virtue within the said colony of Sierra Leone, so as the
same sbould nol be repugnant lo the laws of tbis rcalm, and lo impose
reasonable fines, penalties, 01' forfeitures fOT any breach 01' breaches




502 SIERRA LEONE-CHARTER OF JUSTICE.
thereof; and did further will and ordain that the Court of Directors 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 (he
government of the said colony, and the factories or settlements dependent
thereon, and such Governor and Council, 01' any of them so appointed,
at their pIe asure to remove or recall, and another or others in his or
their place or places to appoint; and that such Governor and Council
so to be appointed, should and might rnake, enact, and declare laws,
statutes, and ordinances fit and necessary for and concerning the go-
vernment of Ihe said colony, and not repugnant to the laws and statutes
of this real m, and that the same should be in full force and virtue
within the said colony of Sierra Leone nntil 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
(he said town of Freetown one body politic and corporate, by the name
01' style of" The Mayor and Aldermen of Freetown," and that such
body poli tic 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 fol' the business
and affairs ofthe said corporation, which cornmon st'al they and their
successors inight break and change at their pleasure :_ And did further,
by the said charter, direet that the persons constituted respectively the
first and modern mayor, ami the first and modcrn aldermen of the said
town of Freetown, in and under the same, should, al a time to be ap-
pointed for tha! purpose by the Governor, 01' in case of his absence, by
the senior of the Council then residing at Sierra Leone, within fourteen
days after notice of the said charter, take an oath duly to exeeute their
respective offices, together wilh lhe oath of allegianee, which oath the
said Governor, or in his absence, the seniol' 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 allegiance the said
mayor should eontinue in the said office until another person should be
duly eleeted and swc.rn into the said office as thereinafter \Vas direeted;
and did by the said charlel' direct that the said persons therein nominated
as aforesaid to be aldcrmen of Freetown, should eontinue in their re-
spective offices of aldermen from the time of taking such oaths as afore-
said, for and duriog the tel'm of their natural li\'es, unless their said
places should be avoided, 01' themselves removed, in such manner as
thereinafter was mentioned: And did further will and diree!, that it
should and might be lawful to and for the Governor and Council of the




SIERRA LEONE-CIIARTER OF JUSTICE. 503
said colony for tbe time being, or tbe major part of tbem, whereof the
said Governor, or in his absence, the senior of tbe council then residing
at Sierra Leone, to be one, year!y and every year, on the first Monday
in tbe month of September, to assemble themselves and proceed to the
e!ection of one person out of the aldermen of the said town of Freetown
to be mayor of tbe said town for one year, from tbe 29th day of Septem-
ber in every year, and until anotber sbould be duly elected and sworn
into tbe said olEce: And did furtber ordain and appoint, tbat the person
so cbosen into tbe olEce of mayor should, on or before tbe 29th day oi'
September next after be should be cbosen into his said office as afore-
said, take tbe usual oatb of olEce and the oath of allegiance before the
said Governor fo! tbe time being, ol' in his absence, before the senior of
the council then residing at Sierra Leone, who were tbereby authorized
and required to administer the same, and sbould continue in sÍlch olEce
for the space of onewholeyear from tbe said 29th day ofSeptember, and
until anotber should be duly elected and sworn into tbe said office in
manner before mentioned; and tbat in case any mayor sbould happen
to die in his said olEce, the 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 al Sierra
Leone, to be one,) should and migbt, as soon after as they conveniently
could, assemble and elect one otber person out of tbe said aldermen of
the said town of Freetown for the time being to be mayor of tbe said
town of Freetown for tbe remainder oftbe year, and ulitil anéltber should
be duly elected and sworn into tbe said office; and that the person so
cbosen and appointed as aforesaid should immediately thereupon take
tbe same oalhs of office and allegiance as were before directed 10 be
taken by the mayors of tbe said corporation: And did furtber ordain, tbat
tbe mayor of the said town of Freetown thereinbefore nominated, and
every olher person who sbou!d thereafte( be mayor of the said town,
sbould, after the determination of his office of mayor, continue to be one
of tbe aldermen of the said town until his said place sbould be avoided
and bimself removed in manner thereinafter mentioned; provided tha:t
tbe mayor for the time being should be capable of being re-elected from
time to time when and as the electors should tbink fit: And did further
will and direct, that so often as any of tbe aldermen of the said town
SbOllld die or be removed, or tbeir places be avoided in manner there-
¡nafter mentioned, Ibe Govel'l1or and Council of the said colony for ibe
time being, or the major part of them, (whereof the said Governor, or,
in his absence, Ihe senior of the Counci! then tesiding at Sierra J.eone,
10 be one,) should and might assemblc and elect so me other fit person
out of the inbabitants of the said town of Frcetown into tIle ~aid place
of aldcrman, who should, within fourteen days artel' liis election, take
the oath of olEce and ¡he oath of allegiance before the Coverno!' of th~




504 SIERRA LEONE-CHARTER OF JUSTICE.
said colony fOl' the time being, or in his absence, tbe senior of the
Council tben residing at Sierra Leone, and should continue in such
office during his life, unless bis said place sbould bj) avoided, or bimself
removed, in such manner as thereinafter was rncntioned; and that if
any person so chosen an alderman should neglect or 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 sucn 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 tbe said
Governor and Council of tbe said colony for the time being, or the
major part of them, (whereof the said Governor, or in his absence, the
senior of the Council then residing at Sierra Leone, to be one,) to be by
them signified to the said court in writing: And did furlher by the said
charler ordain and provide, that ir the said mayor, or any of the said alder-
men, should remove ol' return to Europe, Ol' should otherwise be absent
from the said town of Freetown by the space of three calendar months,
unless fOl' such reasonable cause as the said Covernor and Council fol'
the time being, or the major part of them, (whel'eof ¡he said Covernor,
01' in his absence, the senior of the Council then residing at Sierra
J"eone, to be one,) should allow, or should become the said company's
Governo1', 01' one of their Council of the said colony, in every such case
the phce 01' office of e\'ery such mayor 01' alderman should be void;
and it should and might be lawful lo choose auother mayor or alderman
in the place and stead of such pel'son, in the same manner as was
before provided in case sueh mayor or alderman had been naturally
dead: And did further thereby direet and appoint, that it should and
might be lawful to and for the said Governor and Council of the said
colon y for the time being, 01' the major part of them, (whel'eof ¡he
said Governor, Ol' in his absence, the senior of the Council then residing
at Sierra Leone, lo be one,) to rcrnove any of the said aldermen, upon
reasonable cause, provided that a complaint in writing were first 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 precincts of the said town of Freetown ;
but that in case any person should think himself aggrievcd by any such
sentence or adjudication of removal, such pel'son might, within one
calendar month after notice of such removal, appeal to the said Court
of Directors, upon giving security to pay the costs of such appcal in
case such sentence or adjudication should be affirmed, allhough sueh
appeal should not suspend the execution of such sen ten ce : And did
further by the said charter ordaill, direet, and appoint, that the mayor
and aldermen for the time being of the town of Freetown aforesaid




SIERRA LEONE-CIlARTER OF JUSTICE. 505
shoulu be, and they were thcl'eby conslituted, a Court of Recoru, by the
name of " The Mayor's Court of Freelown ;" and that t!ley, 01' any two
or more of them, (whereof the mayor, or lhe seniol' aldennan fol' the
time being residing there, to he one,) might, and they were thel'eby
authorized lo try, hear, and determine an civil suits, actions, and pleas
between party and party Ihat should or might arise or happen, or that
had already arisen or happened, within the said colony of Sierra Leone,
or any of the factorics subject or subordinate. thereunto, except such
suits or actions as should be between natives of Africa only not become
settlel's within the said colony or factories, in which case his said late
Majesty willed that the same should be determined among themselves,
unless both parlies should by consent submit the same to the determi-
nation of the said Mayor's Court, and also except where the cause of
action or suit should not exceed Ihe value of 40s.: Provid~d, that if
the said mayor, or any of the saiu aldermen, should be in any ways
interested in the event of any such aclion or suit, no such mayor or
aldermen so interested as aforesaid should sit or act as judge in such
suit or action, but that lbe same should be heard and uelermincd by
such of them, the s?.id mayor and aldermen, as should be no ways in·,
teresled lhel'cill; and that in al! cases whcrc the number of voices should
be equal in the dctermination of any action or suit, the mayor, or in his
absence, the senior alderman present, should have two voices: And did
furthel' by the said charler direct, that the person cOllstiluled first sheriff
of the said colony in an:! under the same, should, at a time to be
appointed for that purpose by the Governor, 01' in his absence, by the
seniorof the Council lhen residing at Sierra Leone aforesaid, within
fourtcen days after Ilolice of the said charter, take an oath duly to
executc his office, together with the oath of allegianee, which oaths lhe
said Governor, or in his absence, the senior of the Conncil then residing
at Sierra Leone aforesaid, was thcl'eby empowered lo administcr; and
that from the time of taking the said oaths of office and ailegiance the
said sheriff should continue in lhe said office until another should be
duly elected and sworn into lhe said office, as thereinafter was directed;
and that the Governor and Council of the said colony for the time beillg,
01' the major part of them, (whereof the said Governor, 01' in his absence,
the senior of the Council then residing at Sierra Leone, fo be one,) shoult!
yearly, on the first Monday in the month of September, assemblc lhcm-
sel ves, and proceed lo lhe election of a new sheriff for the year ensuing,
fo be computed from the 29th day of September next after such election,
wbich sheriff, when elected, so soon as conveniently might be, and
befo re he should enter upon his said office, should take the usual oath
of oflice and the oath of allegiance before the said Governor for the time
being, 01' in bis absence, the senior of the Conncil then residing at
Sierra Leone, who were lhereby uuthorized to administer the same, and




506 SIERRA LEONE-CHARTER OF JUSTICE.
should continue in su eh 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 su eh sheriff should die in his office, or should remove from the
said town of Freetown, or 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 them, (whereof the
Governor, or in his absence, the senior of tbe Council then residing at
Sierra Leone, to be one,) should allow, then the said Governor and
Council, or the major part of them, (whereof tbe Governor, or in his
absence, the senior of the Council then residing at Sierra Leone, to be
one,) should and might, as soon as conveniently might be after the
death, removal, or absenee of such sberiff, assemble and ehoose another
person to be sheriff in his room, who should be sworn as aforesaid, and
continue in bis office for the rem~inder of tbe yeal', and until another
should be duly elected and sworn into the said office; and that the
said shel'iff thel'eby appointed, and eyery othel' sheriff so to be elected
and sworn as aforesaid, should, dul'ing his and theil' continuance in such
olEce respectively, have full power and authority to summon juries,
execute and make retmn of all pl'ocess of the said coml, and of any
other comt erected by the said charter within the d istricts aforesaid;
and in case of the absence of any such sheriff for sueh reasonable cause,
to be allowed as aforesaid, the deputy or undel'-sheriff, to be appointed
by su-eh sheriff, should return aU proeess, and do an aets in the name
of and by virtue of the authority of su eh sheriff: And did further by
the said charter direet, ol'dain, and appoint, that upon complaint, to' be
made in wl'iting to the said court, by or on the behalf of any person or
persons against any other person or persons whomsoevel', then residing
or being, or who, at the time when such cause of action had or should
have accrued, did 01' should reside ol' bewithin the said town or elsewhere
in the said colony of Sierra Lr.one, or any of the factories subol'dinate
thereto, of any of the canses of snit aforesaid already aecrued, or wbich
should or might thel'eafter accrue, unless the same should be between
the natives only of Afriea, not become settlers within the said colony of
Sierra Leone Ol' the said factories, or unless such cause of suit should
not exceed the vallle of 40s., the said comt should and might issue a
summons in writing, undel' the hands and seals of two of the judges of
the said cOllrt, (whereof the mayol' fol' the time being, 01' in his absence,
the senior alderman l'esiding within thc said town of Freetown, to be
one,) to he directed to the saiel shel'iff, reqniring the party 01' parties,
defendant Ol' defenuants, to appear before them at a cel'tain time and
place therein to be appointed, to answer the saiel complaint, and in
default of appearance npon return of the said Sllmmons at such time




SIERRA LEONE-CHARTER OF JUSTICE. 507
and place, the said conrt should and might issue forth a warrant, undor
the hands and seala of any two of the judges of the said comt, (whercof
the mayor fol' the time being, or the senior aldcrman thcn residing within
the said town of Frectown, to he Olle, unless the said mayor or senior
alUcrmall should be a party in Buch action or suit, ana in that case under
the hands and seals of any other two of the judges of the saia court,) di-
rected to the said sheriff for the time being, to take the body or bodies of
such defendant or defendants, and bring him or them befare the sain court,
at a certain time and place therein to be appointed, lo answer to the said
complaint; and in case of appearance 01' arrest of the body 01' bodies of such
defendant or defendar¡.ls, to let such defendant or dcfendants out to bail
upon giving sufficient security (which his said late Majesty did the1'eby
empower the said court to take) to abide and perform the final order and
judgment of the said comt, 01' such final order and judgment as should 01'
might be given upon any appeal to be b1'onght in the said cause, 01' 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 security as aforesaid, to detain such defcndant or defendants
in cnstody, until he, she, or they should have found such bail, 01' have
given snch sccurity as aforesaid, 01' should havo judgment or sen-
tence given for him, her, or them for such complaint; and after such
bail-bond 01' security given as afoTesaid, or in case such defendant or
defendants should be detained in custody for want of bai! or security, his
saiel late Majesty did. thereby fol' himself, his heirs, ana successors,
ol'dain, direct, and authorize the said comt to proceed to the examination
of the matter· and cause of complaint, either upon the oath or oatlls or
solemn affirmation of any witncss or witnesses, to be takeii in tbo most
80lemn manner; that Ís to say, the oatb or oaths of SUd1 witness 01'
witnesses who sbould profess the Christian religion fo be taken upon the
Holy Evangelists, ullloss su eh witne~s or witnesses should be of the
persuasion of the people called Quakers, in which caso a solemn affirma-
tion should be sufficient; and upon the oath or solemn affirmation of any
of the natives, in such manner as they should esteem fo be the most
binding on their consciences lo obligo them to speak the truth, for which
purpose, the said court was empoweJ:'ed and reqnired by the said letters-
patent to administer snch oath or áffirmation to such witness or witllesses
as should be produced on behalf of either party, (plaintiff or defcndant,)
or hy the confessioll or admission of sucll defendant or d-efendants in his,
her, or their answer, upon the Iike óath ol' affirmation, according to his,
her, or their religion, sect, or caste respectively, which oath or affirmation
the said conrt was also by the said letters-patent empowered to adminis-
ter; and that thereupgn it sbould be lawful for the said court to give
judgmellt and sentcnce according to law and cquity, and to awal'd and
issue a warrant 01' warrants of execution under the hands and seals of




508 SIERRA LEONE-CHARTER OF JUSTICE.
t\Vo of the judges of the said court, (whcreof the mayor of the said town
of :Frcctown fol' the time bcing, 01' (he senior alderman thcn residing.
within the said town, to be one, unless they 01' either oy them should be
interested thel'eín, and in that case, un del' the hands and seals of any t\Vo
of the aldermen not interested therein,) to be direeted to the sheriff for
the time being, fol' levying the debt, duty, 01' damages adjudged 01'
decreed to the party 01' parties, cornplainant 01' complainants, togethel'
with their costs of suit, upon the goods and chattels of such defcndant or
defendants, 01' to cause sale lo be made of his, her, 01' their goods and
chattels, rendering to the party the ovcrplus, if any werc; and fol' want
of sufficient distress, his said late Majesty did thereby give full power
and authol'ity lo the said court to imprison the defendant 01' defendallts
until satisfaction was made by him, her, 01' them to the plaintiff 01'
plaintiff's of the debt, duty, 01' damages decreed 01' adjudged, togethcl'
with the costs of suit; and in case ~udgment were given fol' the defendant
01' defendants, full pOIVel' and authol'i ty were thereby likewise given to the
said court to award costs to such defendant or defendants, and to issLle the
like process and execution for the same as in cases where costs wero
awarded to any plaintiff 01' plaintiffs; and tlmt if' any action 01' suit should
be brought or commenced against the mayor of the said corporation fol'
the time being during his being 01' continuing in his office, it should and
lllight he lawful for the said Mayor's Court to proceed in and deter-
mine such suit, in the same manner as in any other action or suit dc-
lJending before them, but such mayor should not sit as judge 01' appeal'
on the bench during the hearing of the said cause 01' making any order
thcrcill; and that if any action ór suit should be brought against the
said sheriff during hís being and continuing in his office, it should and
might be lawful to and for the said Governor and Council for the time
bcing, 01' the majar part of thom, (whereof the Governor or the senior of
the Council residing at Sierra Leone to be one,) to Ilominate and appoint
a propel' person to exeeute the proeess and orders of the said court against
such sheriff for the time beillg; and to the intent that due provision
might be made that there might be no failure of justiee, if the defendant
01' defendants, \Vho \Vas 01' were resident withil1 tl;e said tOWIl of Free-
town 01' elsewhere within the said colony, 01' any of the factories 01' set-
tlements subordinate thercto, at the time whcn any cause of action did
accrue should withdraw himself, herself or themselves out of 01' should 110t
be found withill the jurisdiction of .,the said court., his said late Majesty
did by the said charler givc, grallt., will, direct and appoint that in case
the shel'ifi' should make retlll'n to such summOl1S or warrant of arrest that
the party or parties, defendant 01' defendants thereill mentiollcd, 01' any
of them, was 01' were not to be found within the jurisdiction of the said
court, it should and might be la wfnl to and for the said court, uron an
aflidavit of proofverifying the demand of the plaintiff' 01' plailltim in such




SIERRA LEONE-CHARTER OF JUSTICE. 509
suít lo the satisfactíon of the said court, to grant a sequestrutíon lo seize
the estate and effects of such party or partías, defendant 01' dcfcnd-
ants, to suob va1ne as !he said comt shouId think reasonable and sbould
direet in Buch process of sequestration, and the same to dctaín in the
hands of a proper person, to be appoínted by the said comt, tilI snch
party 01' partíes should appear to tbe said eomplaint and give securíty as
aforesaid; and in case tbe party 01' partí es, defendant 01' defendants,
shouId not appear and give security as aforesaid within the space of six
monllls, nnIess it should be shown to the said court on beha1f of such de-
fendant 01' defendallts, that he, she 01' they \Vas 01' \Vere residing in Great
Brilain 01' Ire1and, Ihen that it shou1d and might be lawful for the said
comt to proceed lo hear and deterll).ine the said cause, and to give judg-
ment therein as aforesaid; and in case judgmenl should be given for the
plaintiff 01' p1aintiffs in such suit, to direct the effeets so seizcd to be sold,
and ont of the produce thereof to make satisfaction to thé plaintiff or
p1ailltiffs for the debt, duty 01' damages, and costs recovered, retumillg
the overp1us (if any should be) unto such defendant 01' defendants; and
in case such produce should not be sufficient to make satisfaction to the
p1ailltiff or plaintiffs, that then it shollld and lUight be lawfn1 to and for
the said court to award execulion for the residue of the debt, dnty, 01' da-
mages and costs, recovered in mallner aforesaid: provided neverthe1css,
that in aU cases where the action to be tried wou1d, if the parties had
beell resident in this realm, have be en tried by a jury in some court of
1aw, every such action ShOll1d be tried in the said mayor's court before a
jury, aecording to the practice of thc said courts oC' 1aw in this rea1m, or
as near thereto as Ihe circumstances wou1d admit of; and hia said late
Majesty did thereby empower the said court to administer to such jury
the usual oath taken in like cases in this realm: And for the considera-
tions thereín recited, hís said late Majcsty further, by the said charter,
willed and ordaíned that al! such money, securities and effects of the
snitora of the said comt as shou1d be ordered into conrt, 01' lo be paid, de-
livered 01' deposited for safe custody, sl~ould be paid or delivered unto 01'
deposited with the Governor and eouncil ofthe said co10ny, to be by them
kept in deposit, subject to such orders and directions as the said mayor'a
comt should from time to time think fit to make eoneerning the same for
the benefit of the suitors j and did also give and grant unto the said
Comt of Directors of the said Company, 01' the major part of them,
fuU power and authority from time to time to name and appoillt an
officer, nnder the name of accountant-general of the mayor's court of
Freetown, and the same at their pleasure to remo ve and another to ap-
point, who shou1d act, perform and do aH matters and things necessary
to carry into execution the orders of the said mayor's court l'elating to
the payment or delivery of the suitor's money, effects ancl secmities unto
the Goyernor and COlll1cil of the said colony, and taking the same out




510 SIERRA LEONE-CHARTER OF JUSTICE.
again, and keeping the accounts with the said Govemor and Council and
registrar, or other propcr officer of the mayor's court, and other matters
relative tllereto, under such rules, methods and directions as should from
time to time be made and givcn by the Court of Directors of' the said
Company, which rules, methods and directions his said late Majesty
thereby willed ami directed should be according to such as were observed
by the aceountant-general of t-he High Court of Chancery of Great Bri-
tain, or as near thereto as might be, and. as the situation and circum-
stances of affairs \Vould admit; und did further thereby authorize the said
muyor's comt to administer oaths and affirmations, and to frame sueh
rules of practice, and nominate and appoint sueh clerks and officers, and
to do an such othe1' things as should be found Ilecessary for the admillis-
tration of justice, and the due execution of an or any of the powers given
to them by the said charter, so as they from time to time should give an
account thereof unto the said Company, and so as the same should be
subject to the approhation, controul and alteration of the said Court of
Directors of the said Company, w hom his said late Majesty did likewise
will and ordain to have fuU power and authority to make such rules and
orders for the better admillistration 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 Direetors of the said
Company as aforesaid, should nevertheless be in force until the same
should be revoked or altered by the said Court of Direetors, and notice
thereof given unto the said mayor's court: And did further thereby
require and eommand that atable of fe es to be allowed to such clerks
and offieers should be settled by the said mayor's comt, and approved and
sigued by the Covernor and Couneil of the said colony for the time boing,
and should be writteu out fai!', and constantly fixed up in sorne visible and
opon part of the room al' place where the said court should be held, and
that it should be lawfnl for the said mayor's court, with the approbation of
the said Goverllor and Council for the time being, or the major part of
them, and also to and for the Court of Direetors of the said Company, to
vary and alter such table of fees in such manner as they should think.lit :
And it was further by the said charter ordained and established, that ir
any person 01' persons should think him, her or themselves aggrieved by
any judgment, sentenco or dceree of íhe said mayor's eourt, sueh person
or persons should or might, within fomtccn days after such judgment,
senteuce or dceree of the said comt should be entered of record, appeal to
thc Governor and Council of the said colony for the time being, whom (or
any two 01' more, whereof the Governor, 01' in his absence, the senior of
t1le Council then rcsiding at Sierra Leoue, to be olle) his said late Majesty
did thereby for himself, his heirs and suecessors, eonstitute, nominate and
appoint to be a court of record for that pmpose to reeeive sueh appeals,




SIERRA LEONE-CHARTER OF JUSTICE. 511
and to hear and determine the same, and to do all other aets, matters and
things necessarily incident thereto; provided, tIJat if the said Governor
and Council should be anyways interested in tbe event of any such action
01' suit, no person so interested should sit or aet as a judge upon such ap-
peal, but the same should be heard and determined by such of them, the
said Governor and Council, as should be no ways interested therein, 01'
any two or more of them; and that in all cases wherein the number of
voices should be equal in the determination 01' judgment upon sueh
appeal, the Governor for the time being, 01' in his absenee, the senior of
the Council who should be present, ~nd not interested, should have two
voices, which determination should be final if the debt, damages 01' things
directed to be paid, done or delivered, 01' matters in dispute should not
exceed the value of ¡f400; hut in case the same should exceed the value
of ¡f400, any p~rson 01' persons who should think him, her 01' thcmselves
aggrieved by such judgment, sentence 01' decree made on such 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 appeal from any of the colonies in the
West Indies) upon giving security to pay interest (not exeeeding the rate
of interest which should prevail at the time of pronouncing such judg-
ment, sentence 01'. decree) for the thing adjudged 01' decreed lo be paid,
done 01' delivercd, and the costs of such appeal, in case the said judgment,
sentence or decree should be affirmed: And did further will and direc!
that the judgments, sentences and orders of his said late Majesty, his
heirs and successors, and of the said Governor and Council, made upon such
appeals respectively, should and might be put in execution by the said
mayor's court, in such manner as an original judgmerit of the said court
shonld 01' might have been, and they the said court were thereby required
and commanded to execute the same accordingly; and in case the
said mayor's court should refuse 01' neglect lo cause such judg-
ments, selltences 01' orders to be cxecuted within fourteen days after
application made to them fol' that purpose, then (hat it should be lawful
for, and the said Governor and Council were thereby required and com-
manded to execute 01' cause the same to be executed by slIch ways and
means as the said Mayor's Court might have used 01' employed in exe-
culing the same: And díd further direct and appoint that there should
be within the said town of :Freetown a cour!, which should be called
" The Court of Hequests for the tOWIl of Freetown, and the Factories and
Settlemellts thereof;" and for that purpose willed and required Ihe said
Governor and Council, as SOOIl as convenielltly might be after the arríval
of the said charter, to Ilominate and appoillt sorne of the principal inha-
bitanls of the town of Freetown aforesaid, not more than twenty-four 11017
fewer thall eight, to be Commissioners to hear and determine suits in a
summary way, under such rules, orders and regulations as should from




512 SIERRA LEONE-CHARTER OF JUSTICE.
time to time be given 01" sent to them under the hands of the Comt of
Di1"ectors of the saia Company, which Commissioners, any three 01' more
of them, should haye fuJI power and authority to hear and determine aH
such actions or suits as sllOuld be brought before them, w here the debt,
dnty 01' matter in dispute. shoula not exceed 01" be more than the valne of
10s.; which Conlluissioners so to be appointed shonld sit one day in
every week from the hour of nine to eleven in the forenoon, 01' longer if
the business should reqnire, to hear and determine an snch causes as
should be brought before them not exceeding the value aforesaid: AmI
did further by the said charter wiIl",ordain and establish that the Go-
yornor and Council of the suid colony for tho time being should be jus-
tices of the pea ce, und have power to act as justices of the peace in and
for the said town of Freetown and throughout the said colony of Sierra
Leone, and aH the faotories and settlem€llts subordinate thereto, in the
same 01' the like mauner, aml with the same 01' the like powers, as jnstices
of the peace constituted by any commission or letters patent under the
great seal of Great Britain, for any COllnty, city Ol' town corporate in that
part of Great Britain called EnglulId, did or might cxercise such office :
And did further \Vil! and provide that the said Governol' and Council for
the time being, or any t\Vo 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 oue,) should and might hold quarter sessio/ls of
the peace four times in the year within the district aforesaid, and should
at a11 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 gao!
dclivcry for the tryiug and puuishing of aH offenders and offellces (high
treason only exeepled) had, committed or done, or to be had, committed
or done within the said town of Freetown 01' elscwhere withill tbe said
colony of Sierra Leone, and any of the said factories or settlemellts sub-
ordinate thereto; and that it should and might be Iawful to and for the
said justices of the peace and commissioners of oyer aud terminer and
gaol delivery respectiveIy to proceed by indictment or by such other
\Yays, and in the same or the like manner, as was llsed in that part of
Great Britrill called England, as near as the condition and the circum-
stances of the place and inhabitants \VouId admit of; and for Ihat pmpose
to issue their warrant 01' precept to the/sheriff of the said district for the
time being, commancling him to summon a convenient number of the
principal inhabitants within the said distl'ict to serve and attend as a grand
and petty jury at the said comt l'espectively; and that the said justices of
the peace and commissioners of oyer and terminer and gaoI delivel'Y re-
spectively, shouYd and might admillister to them the uSllal oath taken in
Ellgland by grand ana petty juries, and aIso administcr to the witnesses
who shonld be prodllced fOl" 01' against the party to be tl'ied a proper oatll




SIERRA LEONE-CHAIlTER OF JUSTICE. 513
01' affil'mation, in such manner as they should esteem most binding 011
their consciences to oblige them to speak the truth, ana that the saia
justices ana commissioners should and might rcspectively praceed to the
arraigllment, trial, conviction and puuishment of persons aecused of any
crimes 01' offcllces, (high treasan only exceptE'd,) in the same 01' the like
manller and form, as near as the condition and circumstallces of the
place and inhabitants wauId admit or, as any justices of the peace 01'
commissiollers of ayer and terminer and gaol delivery in that part of
GrE'at Brit~in called England usually and legally do; and that the said
conrt might assemble and adjourn at alid unto such times and places as
they should judge convenient: And did thereby direct th~t the said Go-
vernal' should befare the Council there, al' the major part of them, take
an oath faithfully to execute the said offices of Governor, J ustice of the
Peaee, and Commissioner of Oyer and Terminer and Gaol Delivery,
together with the oath of allegiance, which oaths they were thereby em-
powere¿ to administer; and after the taking such oaths, did thereby au-
thorize the said Governor to administer an oath to the Council faithfully
to execute the said offices of Council, J ustices of the Peace, and Commis-
sioners of Oyer and Terminer and Gaol De!ivery, together with the oath
of allegiance: And did by the said charter further ordain, establish and
appoint, that when any person ShOllld die within (he said town of Free-
town 01' elsewhere within the said colony of Sierra Leone, 01' any of the
factories or settlements subordinate thereto, and should by his wil! appoint
any person 01' persons within the said town 01' colony, 01' the factories or
settlements aforesaid J to be his ex€cutor 01' executors, then and in such
case that the said Mayor's Court, upon proof made 'of the due execution
of the said will, should and the same was thereby authorized and re-
quired to grant probate of the said will under the seal of the said court,
(which seal the said court was authorized by the same to use for that and
other purposcs,) whereby the person 01' persons so named executor 01'
executors should have full power and al,Ilple authority to aet as such, as
touching the debts and estates of his, her or their testator; and where
any pel'soll should die within the town or factories, 01' limits thereof, in-
testate, 01' not having appointed sorne person 01' persons to be executor 01'
exeeutors residing within the said town, colon)', factories 01' settlements
that in either of these cases the said Mayor's Court should, and the sarne
was thereby empowered and requirem to grant lette1's of administration 01'
lette1's of administration with atrauthentic copy ofthe will annexed, (de-
terminable upon any exeeutor named in such will appearing in comt and
praying probate thereof,) as touching the debts and estate of the pcrson
dying intestate or not naming such executor as aforesaid that should be
01' arise within the limits aforesaid, to such pe1'son 01' persons then re-
siding within the jurisdiction of the said court as should be next of kio
to the persoo so dying 01' his rcsiduary legatee, and io case there should


1; L




514 SIERRA LEONE-CHARTER OF JUSTICE.
be no such person within the said jurisdiction then to the principal cre-
ditor of (he person so dying, and for want of any creditor appearing, then
to such other person ur persons as should be thought proper by the said
court, every such .person or persona to whom such administration should
be granted first giving security by bond (respect being had to the value of
the estate) to the mayor of the said town, with condition in the form
usually given in comts ecclesiastical within that part 01' Great Britain
called England, or as near thereto as the nature and circumstances of the
case would admit; 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 or 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 the said letters-patent,
such Governor and Counci!, Mayor's Comt, and such other courts and
officers as are therein mentioned, \Vere fully constituted, elccted and ap-
pointed within the saiel colonY'0f Sierra Leone, and entered upon and
thenceforward excrcised the various jmisdiocions and authorities, olfices
and functiuns respectively granted to anel vcstcel in thcm in and by the
saiel charter, and divers laws and statutes and ordinances fit and neces-
sary for and conceruing the guvernment of the said colony, and not re-
pugnant to tbe laws and statutes of this realm, were from time to time
made, enacted and c1ecIared 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 administ1'ation of justice were also from time to time
made by the said Mayor's Cou1't in furthe1' pursuance of thll said charte1':
And whereas by an Act of Parliament passed in the forty-seventh yea1'
of the reign of his said late Majesty, intituled, "An Act for transferring
to his ~rajesty certail1 possessions und rights vested in the Sierra Leone
Company, and for shortening the dul'ation of the said Campan)', and for
preventing any dealing al' tralficking in the buying ol' selling of Slaves
within tbe Colony of Sierra Leone," reciting the said Act of Parliamellt
therein first l'ecited, and in part l'eciting or mentiolling the said letters-
patent hereinbefore recited; and furthe1' reciting that the said company,
convinced of the expediency of 1'elinquishing the government altd ma-
nagement of the said culony, had expressed a desire to make and had
humbly entreated his said late Mf\jesty to accept a smrcnder to his said
late M ajesty of all the tract 01' district of land granted to them by the
saíd lctters-patent Ul' charter of justicc, 01' uf which the said company
were possessed, 01' which they did then enjoy by purchase or othel'wise in
addition to the said lands so gr311ted as aforesaid tu the said company, and
that the)' wel'e further desirous that their existence as a body polític and
corporate should cease and determine within such period of time, shorter
than that limited and declared in and by the said first herein recited




SIERRA LEONE-CHARTER OF JUSTICE. 515
statute, as was deemed by the said company sufficiellt for them in which
to settle their affairs: And whereas, for confirming and giving effect to
such in tended surrender and for limiting the duration of the said eom-
pany, it was in and by the said now reeited aet enaeted that the said
Ietters-patent 01' eharter of justiee and grant therein mentioned and here-
inbefore 1'eeited, and eve1'y matter, clause and thing therein contaíned,
should and the same were thereby decIared to be thenceforth nulI and void,
ami that the said eompany should be and they were thereby divested of and
from aH that t1'act 01' distriet of land commonly called and known by the
name 01' description of the Península of Sierra Leone, and of and from aH
forls, castles, buildings 01' esta te which had been after purchased 01' other-
wise aequired by the said eompany in addition thereto, or which then
were possessed 01' claimed by the said company in 01' abou! the said pe-
ninsula, and that the said traet or district of land, and all forts, castles,
buildings or estate so purchased 01' otherwise aequired, possessed, en-
joyed or claimed by the said company, should "'iheneeforth be, and the
same and every of them were and was tbereby declared and enacted to
be funy and absolutely vested in his said late Majesty, his heirs and suc-
cessors fol' ever: And whereas it was in the said aet now in recital further
enacted, that at the expil'ation of seven years from and after the passing
of the said aet the said Sierra Leone CompalJY should ceas e to be a body
poli tic and corporate to alI intents, eonstrnetions and purposes whatsoever,
anything in the said herein first recited act to the contrary thereof in any
wise notwithstanding; provided nlways and it was thereby furtller enact-
ed, that it should not be lawful for any person or persons whatsoever in-
habiting or being, or who should at any time thereafter inhabit 01' be
within the said peninsula or colony of Sierra Leone, either direetly or in-
direetly, to deal or traffie in, buy or sell, 01' to be aiding 01' assisting in
the dealing or trafficking, in the buying or selling of slaves, either within
the said peninsnla or elscwhere: And whereas, in pursuanee of the said
Act of Parliament last recited, the said campany did on or about the 27th
day of J uly, in the forty-eighth yeal' of the reign of his said late Majesty,
aetually and fulIy surrcnder to the Governor for the time beillg of the
said colony, by his said late Majesty in that behalf appointed and autho-
rized, the possession of the said colony or peninsula, traet or district of .
land, and all forts, eastles, buildings and estate, which by the true intent
and meaning of the said last recited Act of Parliament ought to have been
so surrendered, and the same were thenceforth in the 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 aet transmit instructions to the said Governor thereof
for the time being, directing him to continue in an respects the adminis-
tration of justice, and the interior government of the said colony, aecording


J, L 2




51G SIERRA LEONE-CIlARTER OF JUSTICE.
to the provisions and directions, powers and authorities contained in the
said in part recited letters-patent or charter of justice, as if the same were
still in force j and the said Governor and Council, Mayor's Court and
othcr courts so constituted and appointed as aforesaid, and the councillOl"s,
j udges and officers thereof respectively, and other judges and oflicer:;
subsequently elected and appointed pursuant to the directions of the ~aid
c11arter, did accord:ngly continue to exercise thcir former jurisdictions,
functions and authorities, and divers proceedings as well judicial as minis-
terial were had by and before them, and judgments given and decrees 01'
orders made in the said courts, and wills proved and administrations
granted in the said ]\fayor's Court pursuant to the provisions of the said
charter; al! which acts and proceedings, subsequent to the annulling of
the said letters-patent or charter of justice, it was deemed expedient to
ratify and confirm: And whereas it was his said late Majesty's royal will
and pleasure, that for the better administration of justice within the said
colony, a chief justice -thereof should from time to time be appointed
during pleasure, who should ha"€ such jurisdictions and authorities as are
hcrcinaftcr mentioned, and who should also be judge of a court of vice-
admiralty by his said late Majesty then lately constituted fol' the said
colony, with snch jurisdictions as then belonged to courts of vice-ad-
miralty in the ·West India ¡slands in general, and should be judge also of
a court of prize, with such limited jurisdiction therrin as his Baid late
Majesty thought fit to grant by his prize commission in that bchalfj but
that in all other respects the laws and constitution of the said colony, and
all the judicial and municipal authorities therein, should during his royal
will and pleasure continue such as they were constituted and appointed
to be by the said recited letters-patent 01' charter of justice, 01' undel' the
authority thercof, as fal' as the said surrender made to his said late Ma-
jesty by the s~id c'ompany, and other the changes of circumstances would
al!ow: And whereas bis said late Majesty, in order to provide fo]' the tben
future government of tbe said colony 01' peninsula of Sierra Leone, and al!
territories thereon depending in Afríea, and for the administration of
justice therein, did by letters-patent, under the great seal of Great llritain,
bearing date at Westminster, the 9th day of August, in the forty·ninth
yeal' of his reign, direct tbat the person appointed or to be appointed
Captain-General 01' Governor-in-Chief of the said colon y, after the publi-
cation of the said letters-patent, should in the first place take the oilths
appointed to be takcn by an Act passed in the first year of the reign of
King George the First, intituled, " An Aet for the further security of his
Majesty's Person and Government, and the succession of the Crown in
the Heirs of the late Princess Sophia being Protestants, and for extiu-
guishirig tbe hopes of the pretended Prince of Wales, and his open and
secret A bettors," as altered and explailled by an Act passe<l in the sixth
year of his reign, intituled, " An Act 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 Quecn Anne, intituIed, ' 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 thcrein mcn-
tioned to Persons indicted of High Treason or Misprision of Treason;"
and should also make and subscribe the declaration mentioned in an Act
of Parliament mado in the twenty-fifth year of the reign of King Charles
the Second, intituIed, " An Act for preventing Dangcrs which may hap-
pen from Popish Recusants;" and shonld likewise take the oath usualIy
taken by the Governors in his Majesty's plantations, for the dne execu-
tion of the offiae and trust of Captain-GeneraI and Governor-in-Chief in
and over the said colony or peninsula of Sierra Leone and the territories
depending thereon, and for the due and impartiaI administration of jns-
tice; an(1 further should take the oath requircd to be taken b~, Governors
of plantations to do their utmost that the several laws relating to trade
and the plantations be duIy observed; which said oaths and declarations
the Council of the said colony, or any two members thereof, were thcrcby
empowered and required to tender anu auminister unto him, and in his
absence to the Lieutcnant-Gov€rnor, if any in the place, or if none, to
such pcrson to whom the administration of the govern;nent was com-
mitted, in m(\nncr as thereinafter provideu; which being performed, that
the said Governor should administerto the Chief J ustice therein nominated
and appointed dnring pleasure, and the other members of the Council of
the said colony, as also to the Lieutenant-Govcrnor,. if any in the place, the
oaths mentioned in the first recited Act of Parliament, altered as aboye,
as also should cause them to make and subscribe the aforesaid declaration,
and administer to thero tite several oaths fol' the dlle execution of their
pIaces and trusts; and did fnrther give and grant unto the said Goyernol'
fulI power and authority from time to time and at any time thereafter, by
himseIf or by any other to be authorized by him in that behaIf, to ad-
minister the oath mentioned in the said nrst recited act, altered as aboye,
to all and evcry such person 01' persons as he shouId think fit, who shouId
at any time pass into the said colony of Sierra Leone, or any of tbe
factories and settlements within his government, 01' sbould be resident 01'
abiding tltere; and tbat the said Governor should have full power and
authority to suspend any member of the Council of the said cotony from
sitting, voting or assisting therein, if he should find just cause for so
doing; and if there shoulil be any Lieutenant- Governor, him likewise to
suspend from the executon of his coromand, anu to appoint another in
his slead until his said Majesty's pleasure should be known: And did
fllrther by the said Ietters-patent ordain, will and direct, that the Go-
yernor, 01' in his absence the Lieutenant-Govcrnor 01' Commandcr-in-
Chief for the time being of the said colony, together with the
Counril of the said coIony, or the major part thereof, shonld haye fun




518 SIERRA 'LEONE-CHARTER 01,' JUSTICE,
power and authority to make, enact and ordain laws, statutes and or-
dinances for the peace, welfare and good government of tbe said colony,
so as sucb laws, statutes and ordinanc~s were not repugnant to the
laws and statutes of tbis realm, but as near as migbt be agreeable
thereto: provided that an such laws, statutes and ordinances, of wbat
natnre or duration soever, were witbin six montbs 01' sooner after tbe
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' disaUowance of the same, as also
duplicates thereof by the next conveyance; and in case all 01' any of tbe
said laws, sta tutes and ol'dinances, being not before confirmed by his said
late Majesty, should at any time be disapproved and disallowed by his
said late Majesty, his heirs and successors, and it should be so signified
un del' his or theil' sign manual and signet, or by order of his or their
Privy Counci!, unto the Governor, Lientenant-Governor or other Com-
mander-in-Chief of ¡he said colouy for tbe time being, then that such and
so many of the said laws, stat~tes and ordinances as should be so dis-
approved and disallowcd, should from thenccforth cease, detcrmine and
bp,come utterly void and of none efrect;'anything tberein 01' in tlíe said
letters patent contained to tbe contrary thereofnotwitbstanding; provided
always, that nothing contained in the said letters patent sbould authorize
or empower the said Governor and Council to impose any taxes or duties
witbin tbe said colony, except sueh as might thereafter be found necessary
for making roads, erecting and !epairing public buildings, or olher pur-
poses of local convenience and oeconomy, and for the interior welfare of
the said colony: provided also, that no law, statute 01' ormnance, whereby
any punishment might be inflicted greater than a fine or imprisonment for
three montbs, sbould be of any force or efrect until the same should receive
his said late Majesty's approbation: and did by tbe said letters putent
further will and establish, that a1l' laws, statutes and ordinanccs which
then or immediately prior to the annulling the said letters patent or
GJ:¡arter of justice therein and hereinbefore in great part recited were in
force within the said colony, whetber ordained and made by the said
charter, or in execution of any authority thereby granted, or otherwise
howsoever, should be and continue of the same force and efrect in the said
colony as if the said charter had not been annulled and made void, except
so far as the same related to the territorial or other rights and interests
of the said Sierra Leoue Company, and to tbe govermuent, administration,
jurisdictioll 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 or varied by sorne law, statute or ordinance,
to be made hy tbe Governor, Lieutenant-Governor or Commander-in.
Chieffor the time being of the said colony, and the Council of the same,
pursuant to the powers vested in them by the leHers patent now in recital;




SIERRA LEONE-CHARTER OF JUSTICE. 519
and that aH judgments, decrees, sentences, orders, probates of wills, grants
of letters of administration, and other judicial or ministerial aets and pro-
ceedings, made, passed or had subsequent to tlle annuUing of the saíd
charter, and before the publication of the letters patent now in recital in
the said eolony, should be and !.Je deemed and taken to be of the same
force and validity as if the said charter had not been arllluUed or repealed,
but still continued in force: And did further ordain, will and direct, that
the Goyernor, or in his absence the Lieutenant-Governor or other Com-
mander-in-Chief of the said colony for the time being, and the Couneil of
the same, should have, use, exercise and enjoy aU and singular the offiees,
jurisdietions, powers and authorities within the ~aid eolony, which in and
by the said charter therein and hercin recÍted were given and grantcd to
the Governor and Council which the Court of Directors of the said Sierra
Leone Company were thereby empowered to eonstitute and appoint, saye
and except as was otherwise directed or provided in and by the said letters
patent now in recital. And did further thercby giye, grant and appoint,
that there should be within the said town of Freetown a body politic and
corporate, by the name and style of the Mayor and Aldermen of Free-
town; and that such body poHtie and corporate should eonsist of a Mayor
and three Aldermen, and should have perpetual suecession, and should
and might be able and capable in law to sue and be sucd in any eourts
and causes whatsoever, and should haye a common seal for the business
and affairs of the said Corporation, whieh eommon seal they and their
sueeessors might break and change at their pleasure; and that the persons
bearing the offiees of Mayor and Aldel'D1en of Freetown at the time of the
publieation of the leUers patent now in recital, by virtue of an election or
appointment made under and by authority of the said annulled charter,
though sinee the same was annu11ed, should be and continue respectively
Mayor and Aldermen of Freetowh, upon the conditions and under the
limitations contained in the said charter; and that a11 the regulations and
provisions contained in the said charter i,n respect to the annual election
of the Mayor and the detel'D1ination of his offiee, and that of the Alder-
men, and the filling up of their places when vaeant by death, absence or
removal, should be observed and carried into execution in respect of the
said Mayor and Aldermen constituted by the letters patentnow in recital,
as fuUy as if the same had been therein repeated. And did further will
and ordain that the person bearing the offiee of sheriff at the publication
of the letters patent now in recital, by virtue of any eleetion or appoint-
ment made under and by authority of the said annuUed charter, should
notwithstanrung retain sueh offiee until the time appointed in the said
charter fot the annual determination of sueh offiee, to aet until the 29th
day of September then next en5uing, and 5hould 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 maUller and form as directed by the




520 SIERRA LEONE-CUARTER OF JUSTICE.
said charter; and that the Governor and Council of the said colony shou1d
have the same powers of electing and appointing the Sheriff as were in
and by the said annulled charter given to the Governor and Conncil ap-
pointed by the said Sierra Leone Company and its Directors; and did
further direet that the said Sheriff so appointcd 01' to be appointed as
aforesaid shonld execute and perform all snch 01' the like offices and
duties, and have, possess and exercise al! such 01' the like powers and
anthorities, as the Sheriff appointed nnder the said annnlled charter, while
the same remaincd in force. And did fmther by the said letters patent
will and appoint that the Chief Justice of the said coJony d11l'ing his!on-
tinuance in the said office, and his successors the Chief J ustices of the
said eoJony, 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 Comt of Record, by the name of " The Comt of
the Recorder of Freetown," and that the said Comt should have, use and
exercise the likc jurisdictions, powers and authorities in all respccts within
the said culony oi' Sierra Leoue, i1l1ike cases, and between the like persons
and parties, as Ulight have heen had, used and exercised by the said
Mayor's Comt of Freetown, under and by virtue of the saiJ therein and
hereinbefore rccited charter of justicc, while the same rcmaincd in full
force and virtue, exeept only where it was othel'wise therein expressly
decIared 01' provided; and that tbe saiel Court of the Recordér of Free·
town should aIso 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
01' rigllt of appea1, as were in the said therein and hereinbefore recited
charter directed and provided in respect of the said Mayor' s Conrt of
Freetown, except as aforesaid; and that all rules ofpractice made by the
said Mayor's Comt of Freetown, and then ol' at the time of the annulling
of the said charter remaining in force, should be observed and followed
in and by the said Comt of the Recorder of Fl'eetowJ1, until by the
autbority of that comt the same should be varied or repealed: provided
always, and it was thereby furthcr ordained and directed, that the Chief
Justice and Recorder should preside in the said court, which should be
held before him and the Mayor and Aldermen of Freetown for the time
being, or tbree of them at least, tbat is to say, either the Mayor and two
of the said Aldermen, 01' the three Aldermen, except when such Chicf
J ustice and Recorder was a party to or interested in aoy suit, aetion or
proceeding depending in the saiel comt, in which case it was provided that
such suit, aetion 01' proceeding should he adjudged, tried and determined
by the Mayor and Aldermen alone, the Mayor presiding; and if t\Vo 01'
more of the said J udges shou1d be parties to 01' interested in any such
suit, action 01' proceeding, tlwn that the l'ema:ning Judges of the said
court should and might adjudge, try ol' determine the same, the senior
Alderman presiJing whell the Chicf J nstkc ane! Recol'Je!', and Mayor,




SIERRA LEONE-CHARTER OF JUSTICE, 521
should be for the reason aforesaid incompetent to sit. Provided fil1'-
tber, that in case of the death, absence or long íncapacity by siekness
of the Chief Justiee and Recorder, the Governor, Lieutenant-Governor
or other Commander-in-Chief of the said colony for the time being,
should and might appoint the most competcnt and proper person within
the colony to aet as Chief J ustice and Recorder during such absence or
incapacity, or in the case of death, until a successor should be appointed
by his said late Majesty, and should enter on the duties of the said office,
which acting Chicf J ustice and Reeorder should be competent to preside
in the saia court, ana to exercise al! the jurisdietions, offices, functions
and authorities of the saia Chief J nstice and Recorder, until supcrscded
by his return, or his beeoming again capable, or by su eh new appointment
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
or sentence, or the decision of any question depending before them, the
majority should determine; and further, that when opinions should be
eqnally divided, the Chief J ustice and Recorder, or the jndge presiding in
his stead, ShOllld have a donble or casting voice. And did furthcr direct
and appoint, that from and after the publication of the saiel letters patent
in the saiel eolony at the period thereinafter appointcd, the allthority and
functions of the saiel Mayor's Conrt of Freetown should cease and deter-
mine, to be thenceforth asslImed und exercised by the said conrt of the
Recorder of Freetown; und that all actions, snits and proccedings then
depending in the said Mayor's Court of Freetown should be respectiyely
transferred in their then present condition to, and sllbsist and elepend
respectively, and be prosecuted, trieel and determined respectively in the
said conrt of the Recol'der of Freetown, just as if the same had been com-
meneed respectively in the said last-mentioned court; and that all records,
mnniments and proceedings wbatsoever of or helonging to the said Mayor's
Court of Freetown, should be delível'ed over to and dcposited with the
records of the said conrt of the Reeorder of Freetown; and that from and
after the same period, the said court of the Recorder of Freetown should
have and exercise such and the same jurisdictions, powers and authorities
to 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 charter. And díd further will and appoint, that tbe Go-
vernor, Lieutenant-Governor or other Commander-in-Cbief, and Council,
for ihe time being of the said colony, should nominate and appoint a
proper person to be Acconntant-General of the said court of the Recorder
of Freetown, who should execute and perform the same offices, trnsts,
matters and things as the Accountant-General of the said Mayor's Conrt
of Freetown was directed and empowered to execute and perform by the
said annnlled charter tberein and herein before recited, (savo and except
as to thc direction and contronl of the Court of Directors of the Sierra




5522 SIERRA LEONE-CHARTER OF JUSTICE.
Leone Company), subject to the ordera of the said comt of the Recorder
of Freetown, and to such directions in respect to the investment or security
of the money belonging to suitors of the said comt, 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 beillg, or by his saitl. late Majesty
in bis Privy Council. And did further there by will and establ ish, that
the Governor, Lieutenant-Goycrnor 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 receiye, hear and detennine
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 their
proceeding therrin, and slIbjcct also to the like right of appeal from their
judgment, sentenee or deeree to his said late Majesty in his Privy Council,
when the debt, damages OY thil1g 01' matter in dispute should exceed the
value of 400l., and upon the like condition as to security to b" thcreupon
giyen by the appellant, as "ere in and by the said annulled chartcr di-
rected and provided in respect of appeals to the Governor and Council
appointed by the said Sierra Leone Company or its Directors, and from
tbem to his said late MaJesty in his Privy Council respectiyely. And did
further thereby ordain, will and establisb, that there should be witbin tbe
said town of Freetown a comt, whiel. should be called "Tbe Court of
Requests for tbe Colony of Sierra Leoné," and which sqo~ld have and
exercise such and tbe same jurisdiction, power and authority in all actions
und 8uits brought before them, whele tbe debt, duty or matter in dispute
should not exceed the value of 40s., in the same way," and subject to the
same rules and regulatious, as were in and by the said recited letters
patent or charter of justice mentioned, contained and provided in 'respect
of tbe Court of Requests thereby constituted. And did furtber ordain
and appoint that the Governor, Lieutenant-Goyernor or Commander-in-
Chief, and the members of the Council of the said colony for the time
being, sbould be, and the same were thereby constituted and appointed to
be justices of thc peace in and for the said town of Freetown, througbout
the said colony of Sierra Laone and an tbe territories dependent thereon,
with aH such and the same jurisdictions, powers and anthorities as lawfully
couJd 01' might be exercised hy justices of the peace duly constituted by
bis said late Majesty in that part of the United Kingdom called England,
witllÍn the county, dty or town corporate fol' which they were so consti-
tuted, so far as the laws of this realm were applicable to and in force in
the said coJony. And did further ordain, wil! and establish, that the
Chief Justice and othe1' members of Council of the said colony for the
time being (without the Governor, Lieutenanf-Governor 01' Commalldcr-
in-Chief) should and might hold qllartcr-sessions of thc peace four times
in the year within the said colony, and should from time to time and at




SIERRA LEONE-CHARTER OF JUSTICE. 5~3
aH times tllereafter be Commissioners of Oyer and Terminer and Gaol
Delivery, for the trying of aU crimes and misdemeanours had, committed
01' done, or to be had, committed 01' done within the said town of Free-
tOWIl or elsewhere within the said eolony of Sierra Leone, 01' any torritory
dependent thereon; and that it should and migM be lawful to and fol' the
said Justices of the Peace and Commissioners of Oyer and Terminer and
Gaol Delivcry rcspectivcly, to proceed by indictment, 01' by slIch other
ways and mean s, and in the same 01' like manner, as were lIsed in that
part of the United Kingdom called England, as near as the condition and
circumstanccs of the said colony and the inhabitants thereof would admit
of; and for those purposes lo issue their warrants 01' precepts to the sheriff'
of the said colony for the time being, commandillg 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 conrts respectivel}'; and
that the said J nstices of the Peace and Commissioners of Oyer and Ter-
miner and Gaol Delivery respectively should and might administer to
8uch jurors the oaths usually taken in England by grand and petty jurors
respectivcIy, 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
respectivcIy procced to the arraignment, trial, conviction and punishment
of persons aeeused of any erimes 01' otrences, in the same 01' the like
manner and fOf!,l1, as neaf as the condition and circumstanees of the place
and inhabitants would admit of, as any Justices of the Peace or Commis-
sioners of Oyer and Terminer and Gaol Delivery usually and lawfully do
within that part of the United Kingdom ealled England; and that the
said courts might assemble and adjourn at and to 8uch times and places
as they might adjudge convenient. And did further direet 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 Justiee and Reeorder, and
other Judgcs of the said Court of the Re¡;:order of Freetowll, should prior
to their entering upon the execution of their said respective offices take
an oath before the Governor, Lieutenallt-Governor, 01' Commallder-in-
Chief, and Couneil, for the time beillg, faithfully to execute their said
respective offices, together with the oath of allegience, whieh oaths the
said Governor, Lieutenaut-Governor, 01' Commander-in-Chief, and Couueil,
for the time being were thereby empowered to administer. And did fur-
ther by the said letters-patent give and grant unto the Governor of the
said colony for the time being full power and authority from time to time
to constitute and appoint aU such officers and ministers as might be
necessary in the said colony for the better administration of justice and
putting the laws in execution, and for whose appointment his said late
Majesty had not otherwise therein provided, and to administer or cause to
be administered lo them the usual oath 01' oaths for the due execution of




5fi!4 SIERRA LEOSE-CIL\RTER OF JUSTICE.
their respective offices. And did thereby furthcr give and grant unto the
said Governor full power and authority, when he should see cause, or
should judge any offender or offenders, in criminal matters, 01' for any fines
or forfeitures due unto his said late Majesty,. fit objects of his merey, to
pardon all 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, nntil and to the intent that his said late Majesty's pIe asure
might be known thcrein. And did further authol'ize and empower the
said GOVCl'nor to collate any person 01' persons to any churches, chapels or
ecclesiastical benefices within the said colony, as often as any of tht!ñi
should happen to be void. A nd did further give and grant unto the said
Governor, by himself, or by his captains and commanders hy him to be
anthorized, fuU power and authority to levy, arm, muster, command and
employ a11 persons whatsocver residing within the said colon y and the
tcrritories dependent thereon, and as oecasion shonld demand to march
them from one place to another, 01' to embark tl1em, fol' the re$isting and
withstanding of all enemies, pira tes and 1'0bcls, both at sea and land, and
such enemies, pira tes and rebels, if there should be occasion, to pursue
'and proseeute in or out of the limits of the said eolony; and if it should
so pIease 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, or
other times when by law it might be executed, and to do aoo execute al!
and every other thing and things which to the Captain-General and
Govemor-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 antho-
rity, by and with the advice and consent of the said couneil, to crect,
raise, and bllild in the said colony of Sierra Leone, and the territories
depending thereon, snch and so many forts and platforms, custlcs, cities,
boroughs, towns, and fortifications, as he by the advice aforesaid sllOnld
judge necessary, and the same or any part of them to fortify and furnish
with ordnance, ammunition, and an sorts of arms fit and necessal'y fol' the
secnrity and defence of the said colony, and by the advice aforesaid, the
same again, or any of them, to demolish or dismantle, as might be most
convenient: And forasmnch as divers mutinie.s and disorders might
happen by persons shipped and employed at sea during the time of war,
and to the end that sueh as should be shipped and employed at sea
during the time of war might be bettcr governcd and ordered, his said
late Majesty did by the said letters-patent gil'e and grant nnto the suid
Governor of the said colony full power and authority to constitute and
appoint captains, lieutenants, masters of ships, and other commanders and
officers, and to grant to such captains, licutcnants, masters of ships, and
other commanders and officers, commissions to execute the law martial




SIERRA LEONE-CI1ARTER OF JUSTICE. 5Q5
during the time of war, according to the directiolls 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 forees by sea," as the same is altered by an
aet passed in the nineteenth year of the reign of his said late Majesty
King George the Third, Our royal father, intituled " An Act to explain
and amend an Aet made in the twenty-seeond year of the reign of his
late Majesty King George the Seeond, intituled ' An Act for amending,
explaining, and reducing into one Aet of Parliament the laws relating to
the government of His Majesty's ships, vessels, and forces by sea;' ,. and
to use such proccedings, authorities, punishments, correetions, upon any
offender or offenders who should be mutinous, seditious, disorderly, or any
way unruly, either at sea or during the time of their abode and residence
in any of the ports, harbours, or bays of the said colony, as the case
should be found to require, according to martiallaw, and the said direc-
tions during the time of war as aforesaid: Provided that nothing therein
contained should be construed to the cnabling of him, or of any by his
authority, to hold plea or to have any jurisdiction of any offimce, cause,
matter or thing commÍtted or done upon the high sea, or within any of
the havens, rivers, or creeks of the said colony and territories under his
government, by any captain, lieutenant, eommandcr, master, officer,
se aman, 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 otlter vessel acting by immediate commission or warrallt from the com-
missioners for executing the office of lord high admira! of the United
Kingdom of Great llritain and heland, or from the lord high admiral
for the time being, under the sea! of the admira!ty; but that such captain,
commander, lieutenant, máster, officer, seaman, soldier, or other person so
offending should be left io be proceeded against and tried as their offences
should require, either by commission under the great seal of the United
Kingdom of Great Eritain alld Ireland; pursuant to the statute of the
twenty-eighth of Henry the Eighth, or by commission from the said
commissioners for executing the office of lord high admira! for the time
being, according to tlle afore-mcntioned act, intituled "An Act for
amending, explaining, and reducing into one Act of Parliament the laws
relatiug to the government of llis Majesty's ships, vessels, and forces by
sea," as altered and amended by the said act passed in the nineteenth
year of the reign of his said late Majesty, and not oiherwise; provided
nevertheless, that aH offences and misdemeanors committed on shore by
any captain, commancer, lieutenant, master, officer, seaman, soldier, or
other person whatsoever, helonging to any ship of war or other vessel
actillg by immediate commission or warrant from the said commissioners
or lord high admiral fo! the time being as aforesaid, might be tried and




5!é26 SIERRA LEONE-CIIARTER OF JUSTICE.
punished according to the laws of the place where any Buch offences or
misdemeanors should be so committed on shore, notwithstanding Buch
offenders were in his said late Majesty's actual service, and borne in his
pay on board any such ship of war or other vessels acting by immediate
cornmission or warrant from the said commissioners or lord bigh admiral
for the time being as aforesaid, so that such offender shall receive no pro-
tection for the avoiding of justice fol' Buch otrences BO 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, sta tute, or 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 directed and appointed by
such law, statute, 01' ordinance, and not otherwise: And did further give
and grant unto the said Governor full power and authority, by and with
the advice ancl. consen! of the said council, to settle and agree with the
inhabitants of the said colony for such lands, tenemenes, and hereditaments
as then were 01' thereaftel' should be in his said late Majesty's power to
dispose of, and them to grant to any person 01' persons, upon such terms,
and under Buch moderate quit-rents, services and acknowledgments to be
thereupon reserved unto his said late Majesty, as he the said Governor,
by and with the advice aforesaid, should think fit; which said grants were
directed to pass and be sealed by the seal of the said colony, and being
entered upon record by such officer 01' officers as were or should be
appointed thereunto, were declared to be good and etrectual.in law against
his said late Majesty, his heirs and snccessors: Provided always, and it
was thereby further ordained, that no grant, leas e, or demise at any time
theretofore made by or under the authority of the said Sierra Leone
Company, prior to the said surren¡}er to his said late Majesty of their
territorial rights and interest in the said colony and its dependencies,
pursuant to the Act of Parliament aforesaid, whether the same were by
<leed 01' writing, or by parol only, should be in any manller impeached or
avoided, but that the same should be and be taken to be as valid and
eftectual, to al! intents and purposes, against his said late Majesty, his
heirs, and successors, as if the said surrender pursuant to the said Act of
Parliamellt therein and hereinbefore recited had not been made; and tQat
al! snch grants, leases, and demises of lands or tcnements within the said
colony, should be confirmed by the said Governor under the seal of the
said colony, if the grantees, lessees, 01' parties beneficially interested
therein should apply for and request such confirmations: And did further
give and grant unto the said Governor full power and authority to order
and appoint fairs, marts, and markets; and also such and so many ports,
harbours, bays, havens, and other places for the convenience and security
of shipping, and for the better loading and ullloading of goods and mer-
chandize, in Buch and so many places as by him, by and with the advice




SIERRA LEONE-CIIARTER OF JUSTICE. 527
of the said couneil, should be thought fit and necessary: And did further
require and eornrnand all officers and ministers, civil and military, and an
other inhabitants of the said colony and the territories dependent thereon,
to be obedient, aiding and assisting unto the said Governor, in the exeeu-
tion of the several powers and authorities in the said leUers patent eon-
tained; and in case of his dcuth or ubsence out of the said colony and
the territories dependent thercon, to be obedient, uiding, and assisting
unto such person as should be uppointed by his said late: Majesty's Lieu-
tenunt-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 an
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 m·rival of the Governor within the said colony; and if, upon the
death or absence of the Governor from the said colony and territories
dependent thereon, thel·e was no person in the place eommissioned by
his said Majesty to be Lieutenant-Governor or Commander-in-Chief of the
said colony, then that the member of council next in seniority to the Chief
Justiee for the time being (to which Chief Justice his said late Majesty did
by the said lctters-patcnt grant rank and precedency aboye and before an
subjects wholl1soever in the said colony, thc Govemor, Lieutenant-
Govemor, or oth.er Commander-in-Chief of the said colony for the time
being ollly excepte(l; and that the said Chief J ustice should be a member
of council by virtue of his office, and preside therein in the absence of
the Governor or Lieutellant-Governor; provided always, that he should
in no case succeed to the chief eommand of the said colony), who should
be residellt within the said colony, should tale upou him the administra-
tion of the goverllment of the said colouy, and exeeute the several powers
and authorities eontained in the said letters-patent until the return of the
said Governor, if absent from the said colony, or ulltil, in case of the
death of the said Go,'emor, his said late Majesty's furthcr pleasure were
known therein. And whereas, byan Act of Parliament made and passed
in the first and second year of our reign, iritituled " An act for abolishing
the African Company, and transferrillg to and vesting in his Majesty an
tho Forts, Possessions, and Property now belonging to or held by them,"
it was, among other things, euaeted, that from and after the 3d day of
July, 1821, the said corporatlOn of the company of merchants trading to
Africn should wholly cease and determine and be abolished, and the
said Company of Merchants trading to Afriea 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, 01' in
pursuanee of any thing therein contained, should, and the same were
thereby declared to be theneeforth nuIl and void; and that the said
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 LRONE-CHARTER OF JUSTICE.
were given to the said Company by or under or in pursuance of the said
therein reeited aets, or any or either of tbem, 01" which had been since
purchased or otherwise acquired by the said Company in addition thereto,
or which tben were possessed or claimed or held by the said Company on
the said coast; and that the said forts, castles, buildings, possessions,
estate, and rights so acquired, possessed, enjoyed or claimed, or then hcld by
the said Company, should thenceforth be, and tbe same and every of them
were, and were thercby dcclarcd and cnactcd to be fully and absolntely
vested in us, our hcirs, and successors for ever : And whereas it \Vas fnrther
enacted in and by the said Act of Parliamcnt, that from and after the
passing of that aet, it should and might be lawful fur us to order and direct
that al! or any of the forts and possessions thercin and hcreinbefure-men-
tioncd, and also auy territories, islands, or possessions on the west coast of
Africa, betweel1 tbe twentieth degree of north latitude and the twentieth
degree of south latitude, which then did or at any time thereafter sbonld
or might belong to us, sllOuld be annexed to or made dependencics on the
colony of Sierra Leone; and that from the date of tbeir being so annexed
or made dependeneies on the said eolony, they should Le subject lo all
sueh laws, statutes, and ordinances as should be in furee in the said
colony, or as should at any time thereafter be mad", enacted, or ordained
by the Govemor and Council of the said colony, and should not be dis-
aUow~d by us, in the same manner as if the said forts, possessions, terri-
tories, or isIands 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
wel! of the said forts and possessions so heretofore aeq~ired, purcbased,
enjoyed, claimed, or held by tbe said African Company, as of al! and
every other the territories, islands, or possessions on the west coast of
Afriea, between the twentieth degree of north latitud e and. the twentieth
degrec of south latitude, whieh now do or at any time hereafter shall or
may belong to us, out" hcirs, and successors, do by these prescnls, by
virtue and in pursuance of the said recited aet, and of onr special graee,
certain knowledge and mere motion, order, direet, and appoint, that al!
and evcry of lhe said forts and possessions so heretofore acquired, pur-
ehased, enjoyed, daimed, or held by the said African Company, and also
al! territories, islands, and possessions wbicb now do or at any time here-
after shall or may belong to us, our hcirs, and successors, on the west
coast of Africa, between the twelltieth degree of north latitude and the
twelltieth degree of sOllth latitude, shall be annexed to and made dependen-
cies on, and the same are bereby annexed to and made dependencies on
tbe said colony of Sierra Leone; and that from the publication of these
presents in the said colony of Sierra Leone, as hereinafter directed, the
same shall be and they are hereby made subject to al! Buch laws, statlltes,
and ordinances as shall be in furce in our said colony, or as shall al any
time hereafter be made, enacted, or ordained by the Gorernor and




SIERRA LEONE-CHARTER OF JUSTICE. 5Q9
Council of the said colony, and shall not be disalIowed by ns, our 11eirs,
and successors, in the same manner as if the said forts, possessions, terri-
tories, or islands had originally formed part of the said colony of Sierra
Leone: And we do furthel' by these presents, for us, our heirs, and suc-
cessors, wilJ, establish, and ordain, that from and after the publication of
these presents, there shall be nine 01' more councillors, advising and
assisting to our Governor of our said colony of Sierra Leone for the time
being: And we do by these presents nominate, make, ordain, and con-
stitute our trust y and well-beloved Edward Fitzgerald, our chief justice,
01' our chief justice of OUI' said colony for the time being; our trust Y and
well-beJoved Daniel Molloy Hamilton, our advocate, 01' our advocate of
our said colony for the time being; our trust y and well-beloved Dudley
}'eriday, our secretary, or our sccretary of our said colony for the time
being; OUI' trnsty and well-beloved Thomas Stuart Buckle, our surveyor
of lands, 01' our surveyol' of lands of our said colony for the time being ;
our trust y and well-beloved Kenneth Macaulay, esquire, our trust y and
well-beloved Alexander Grant, esquire, our trust y and well-beloved
Joseph ReffelI, esquire, our trust y and well-beloved John O'Neill Walsh,
esquire, OUl' t1'Jlsty and well-beloved Thaddeus O 'Meara, esquire, OUl'
trust y and wcll-beloved Andrew Nieoll, doctor of medicine, our trust y and
well-beloved J ohn Hopc Smith, esquire, and our tmsty and well-beloved
William Dawson, -esquire, thenceforth councillors of oUl' said colony, to
continue in their said office of councillors during their naturallives, unless
suspen'üed from their said office, 01' absent from the said eolony for the
spaee of one year without leave given them under our royal signature, 01'
until other councillors shall be chosen and appointed by us, under our
signet and sign manual, in theil' stead: And we do further hel'eby give
and grant to our said Governor fuU power and authority to suspend any of
the members of our said couneil from sitting, voting, 01' assisting therein,
if he shaIl find just cause for so doing; and if it shall at any time happen,
that by the death, departure out of our said colony, 01' suspension of our
said 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 liS by the first
opportunity, that we may, under our aignet and sign manual, constitute
and appoint otIlera in their stead; but, that our alfairs at that distance
may not suffer from want of a due number of councillors, if ever it shall
happen that there be less than nine of them residing in our said colony,
we do hereby give and grant unto our said Govemor fuJl power and
authority to choose as many persons out of the principal illhabitants
thereof as shall make up the full number of our said eouneil to be nine,
ana no more; wllicll persons so chosen and appointed by him shall be to
all intents and purposes conncillors in our said colony, until eithel' they
shall be confirmed by us, 01' that, by the nomination of otlJers by us under


MM




530 SIERRA LEONE-CHARTER OF JUSTICE.
our sign manual and signet, our said council shall have nine or more
councilloTs in it resident in our said colony: And we do further by these
presents ordain, will, and' appoint, that our Governor of our said colony,
or in his absence, our Lieutenant-Governor or Commallder-in-Chief for
the time beiug of our said colollY, together with our couucíl of the same,
or the major part thereor, sha11 have fun power aud authority to mak~,
coustitute, and ordain laws, statutes, and ordinances for the public wel~
fare and good government of our said colouy, under the like cónditions,
and subject to the same limitations and restrictions, as those imposed in
tbat behalf on the Govemor and council of OUT 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, ihat
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, sta tutes, and
ordinances as aforesaid: And we do further by thesepresents will, ordain,
aud appoint, that from áud after the publication of these presents in our
said colony of Sierra Leone, as hereinafter directed, our court of record in
our said colony, called aud known by the name of "The Court of the
Recorder of Freetown," shall cousist of our chief justice of the said colony
for the time being,~nd two such members ofthe council as shaIl beappointed
by the Governor of our said colony for the time being assistant judges
thereof, in líeu of the mayor and aldermen oí Freetown for the time
being, as ordained and appointed in and by the letters patent of his said
late Majesty hereinbefore recited; and we do hereby wiIl and ordain,
that they or any two of them (whereof our said chief justice for tha
time being resident in Fl'eetown 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 OUT said colony of Sierra Leone, or any
of the forts, settlements, islands, or territories subject or subordinate
thereto, except when the cause of 8.ction. Ol" suit she.ll not creced the
value of 408.: Provided always, and it is hereby further ordained and
directed, that ií such chief justice anil recorder, 01' any of tbe said aa-
sistant jlldges, should be any ways interested in the event of any such
aetion or suit, no such chief justice and recorder or assistant judge,
ahaIl sit or aet as a judge in sueh suít or actíon, but the same shall be
heard aud determined by such of them as shall be no ways interesled
therein; and in all cases where the number oí voices shall be eqllal in
the determination of any action or suH, the ehief justice, or in his ab-
sence the senior assistallt judge presen!, shall have two voiees: And
we do further direct, that the said Court. oí the Recorder oí Freetown
hereby constituted shall proceed iu the same manuer aud form, and sub-




SIERRA LEONE-CHARTER OF JUSTICE. 531
ject to the same rules as to trial by jl1ry and otherwise, and to the same
remedy and right of appeal, as were in and by the said letters patent
hereinbefore recited, directed, and provided in respect of the Court of the
Recorder of Freetown, constituted by such letters putent; and that alI
rules of practice made by the one court, and now 01' at the time of the
publication of these presents remaining in force, shan be observed and
followed in and by the other, until by the authority of that other the
Bame be varied 01' repealed: 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' annulled for 01' by reason 'of any change
in the constitution of the said court effected by these presents, but that
the same shan 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 FreetowIl
hereby constituted and established to all 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 ussistant judges of
the said Court of the Recorder of Freetown as aforesaid, shall, prior to
the entering upon the execution of his said officc, takc an oath before
the Governor, Lieútenant-Governor, 01' other Commander-in-Chief for
the time being, for the due dischurge 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,
or other Commander-in-Chief, and council, of our said coJony for the
time being ahall be, and they are hereby constituted a comt of record to
receive, hear, and determine appeals from, as weU the said Conrt of the
Recorder of FreetoWll, as from any other superior court of common law
now established 01' to be in future establi5hed in our said colony pursuant
. to these presents, in the like cases, und s~bjeet to the Iike limitations,
rules, and direetions as to their proceedings therein, and subject also to
the like right of appeul from their judgment, sentence, 01' deeree, to us
in our Privy Council, when the debt, damages, or things, 01' matter in
dispute shaU exceed the value of 4001., and upon the like condition as to
security to be thereupon given by the appe11ant, as were iJl and by the
said letters patent hereinbefore recited, directed, and provided in respect
of appeals to the Governor and Council of the said colony, and from
them to his said late Majesty in his Privy Couneil respectively: Provided
always, and it is hereby ordmned, that no such member or members of
our said council as shaIl be at that time judge 01' judges of the comt from
which such appeal sha11 be made, .shall be entitled or permitted to vote
upon such appeal; provided also, that no appeal be allowed from any


}! M 2




532 SIERRA LEONE-CHARTER OF JUSTICE.
sentence, ordcr, or de ere e of our Courts of Chancery of out said eolony,
to us or mlr Privy Couneil, uuless the debt, damage, or thiug or matter
in dispute, shall exceed the like sum or value of 4001. sterling j and that
such appellant do also give good security that he wil! effeetually prosecute
such appeal, aud answer the condemnation money, aud pay also such
costs and damages as sha11 be by U5 awarded in case sueh sentence, order,
or decree so appealed from be affirmed: Provided neyertheless, and out
further wil! and pleasure is, that when the matter in question relates to
the taking or demandiug of any duty payable to us, or to any fee of
office or anuual rent, or other such like matter or thing, where the right
in fnture may be bound, in aU such cases an appeal may be had from the
judgment of our said Governor and Couueil as aforesaid, or from the
sentence, order, or decree of our Court of Chancery of our said colony, to
us in our Privy Couucil, though the immediate sum or value appealed for
be of a less amount than 400l. sterling: And our fmther pleasure is, and
we do hereby direet and appoint. that om said Governor shaU and may
keep and use the publie seal of our said colony of Sierra Leone for seal-
ing an instruments whatsoever that do and onght to pass the great seal
of our said eolony under his said government: And whereas writs of in-
quiry of idiots and lunatics may and ol1ght to issl1e out of our Court of
Chaucery in our said colon)', and be rctl1ruable in our said comt, and
great trouble and eharges may arise ir occasion be to resort unto us, om
heirs and successors, for directious respeetiug such idiots and lunatics,
and their estates, we do by these presenta give and grant unto Out said
Governor fuU power and authority to give orders and warrants from time
to time for prcparing grants of the custodies of such idiots and luuatics
and their estates, as are or shall be found by inquisition thereor, taken or
to be taken, and retnrned or to be returned into our said Comt of Chan-
cery of our said colony, and thereupon to make and pass grants and
commitments nnder our great seal of our said colony, 01' thc custodies of
aU and every such idiota aud lunatics and their esta tes, to such person or
persons, suitors in that behalf, as aeeording to the rulcs 'of law, and tlle
use and practice in those and the like cases, he shall judge meet for that
trust j the said grauts and commitments to be made in such manuer and
form, or as near!y as may be, as hath hcrctofore bcen lIsed and aeclIs-
tomed iu making the same uuder the great seal of this kingdom, and to
contain such and the likc apt and convenient covenants, conditiolls, and
agrecments on the part of the committees and grantees to be performed,
and such secmity to be by them givcn, as shall be requisite and nccdful :
And \Ve do further by these prescnts order, direct, and establish, that
from aud after the expiration of three months from the publication of
these presents hcreinafter direeted, the authority of the Conrt of Re-
quests for the eolony of Sierra Leoue, for the recovery of small debts
within the said colony, as constitutcd by the letters patent of his said late




SIERRA LEONE-CHARTER OF JUSTICE. 533
Majcsty hereillbcfurc recited, ~hall cease allU hc abolisheu: And. we do
by these presents authorize and l'equil'e our said Governol', by and with
the ad vice and concurren ce of our said couneil, prior to the expiration
thercof, to nominate and appoint certain justices 01' uthers commissioners
in and fol' particular districts, upon whom the authority of the said
court thenceforwaru to ccase anu be aholislwd in and throughout the
said colony as aforesaid may l'egularly devolve; and that the said jus-
tices 01' other commissioners may and shall proeeed to the hearing and
detcrmining of al! matters of debí 01' damage under 40s. value, in the
same 01' the like manner and form, as near as circumstances will admi!
of, as any commissioners of requcsts usually and lawfuJly do within that
part of oU\' united kingdom called England; and that such commissi-
oners shall assemble at such times and plaees as our said Governor, with
the advice and eoneurrence of our Couneil as aforesaid, shall from time
to time appoint: And we do further hereby direet and estab1ish, that
from and after the publication of these presents, our Governor, Lieute-
nant-Governor, 01' Commander-in-Chief fol' the time being of oU\' said
colony, shall and may do, execute, and perform aJl that is necessary for
the gralltillg of ¡icenees for marriages, as also fol' the pruhate of wills
and granting of administrations fol', touching 01' eoncerning any interest
01' estate which any person or persons shall have within our said colony
al' its depcndencics, in snch or the 1ike manner and form as our Go-
vernors, Lieutenant-Govcrnors, or other Commallders-in-Chief of our
provinces in America, are used and authorized to do, execute, and per-
fonu the same: And our fmther will and pleasme is, that from thence-
forth such jurisdictions, powers, and authorities as were given to the
Comt of the Recorder of Freetown aforesaid, and to the said Mayor of
Freetown, in and by the said lettel's patent hel'einbefore recited, in re-
spect to grants of probates of wills and letters of administration, shall
cease and determine; but we do nevertheless will and ordaín, that no
probates issued or letters of admillistra.tion granted in the said court
pmsuant to the provisions of the said lelters patent, prior to the publrca-
tion of these presents, sl!all be impeached or avoided by the cessation of
the authority and functions of the said court in the premises, but that
the same shall, and the same are hereby ordained to remain in as fuU
force and eirect as if tbe said court still possessed the powers and autho-
rities to grant probates of wills and letters of administration conferrcd
npon it by the said letters patent: And we do further by these presents
give and grant unto our said Gov~rnor fuU power and authority, with the
advice and consent of onr said Council, to erect and constitute judica-
tori es and courts of record, or other courts, to be held of us, our heirs
and successors, for the hearing and determining aU and an manncr of
causes, as well criminal as civil, arising or happening within our said
colony, or betwccn pcrsons inhabiLillg 01' residing there; as also to issue




534 sIERRA LEONE-CHARTER OF JUSTICE.
from time to time special commissi ons of oyer ann terminer and gaol de-
livery, limited to the districls and crimes or misdemeanors specified in
such commissions, and for the awarding ana making out execution there-
upon; to which conrts ana judicatories we do hereby give and grant full
power ana authority from time to time to aaminister oaths for the better
aiscovery oftrnth in any matter in controversy or aepending before them,
together with all other reasonable ana necessary powers, authorities, fees,
and privileges belonging thereto: And we do hereby further give and
grant unto our said Governor full power and authority to constitute and
appoint jndges, and in cases requisite, commissioDcrs of oyer and ter-
miner, justices of the peace, 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 duti"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 presents, shall or shail 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 retllrn of all pro-
eesses and the Iike, 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 Península of Sierra Leone, bounded as afore-
srud: And in case of the deatll, absence, or removal of 011r Lieutenant-
Governor of our saia colony, we do fnrther by these presents authorize
and empower our Governor of our said colony, being at the time of such
appointtmmt 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
onr pleasure thereupon shall be known; provided it shall appear to our
said Governor that the administration of the government of our said co-
lony, by the member of our said council next in seniority to the chief
justice thereof for the time being, may not tend to the good of our ser-
vice and the welfare of our said colon y : And we do &rther ordaín, will,
and establish, that within thirty days after these presents shaIl arrive
within our said colon y of Sierra Leoue, our Governor, Lieutellant-Go-
vernor, or other Commallder-in-Chief of our said colony for the time
being, 8ha11 cause these our leUers patent to be published and procláimed,
and the contents thereof to be publicly known within the said colony,
and that from and immediately after sllch publication the same shaIl be
in fuIl force ana effect within our said colony: Provided al ways, and we
do hereby reserve unto ourself, our heirs and successors, fuIl power and
Buthority to revoke, vary, alter, annul, and make void these presents, and




SiERRA LEON'E-CHARTER OF JUSTICE. 535
every 01' any clause, malter, 01' thing herein contained, and to make such
new, othel', 01' furlher ordinances and appointments for the government
of our said colony, and for the administratioll of justice within the same,
as to ns, ou1' heirs and suceesso1's, in thal behalf shan seem meet: And
we do laslly by these presents, for us, OU1' hei1's and succcssors, direet
and appoint that our Governo1' of OU1' said colony of Sierra Leone, and
his successors the Governors thereof, during 0111' royal wil! and pleasure,
mayand shan have and exercise the several powers aIld authorities given
and granted lo them by these presents, together with and superadded to
the several powers and aulhorities conferred OIl the Governor oC the said
colony by the letters patent of his late Majesty King George the Thira.,
our dearest father, hereinbefore recited; and that the constitution and
lawB of our said colony of Sierra Leone, and an judicial and municipal
authorities therein, shall for the present and during our royal wil! and
pleasure, continue Buch as they were constituted and appointed to be by
the said letters patent of his said late Majesty, 01' under the authority
thereof, so far as the possessions herelofore held by the African Com-
pany, and a1so the territories belonging to us, our heirs and successors,
on the wesl coas! of Afríca, between the twentieth degree of north lati-
tude and the twentíeth degree of south latitudc, being annexed by these
presents to our said colony of Sierra Leone, and othe1' changes of cír-
cumstances wíthin our said colony, whether consequent upon tbe 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.


Examined with the record in the Petty Bag Office in the Court of
Chancery, the 22d day of April, 1834. -


J. BENTALL.




( 536 )


COLONIES IN rrHE INDIAN SEAS.


CEYI .. ON.


-


CEYLON is an island in the East ¡mUes, lying between
the sixth and tenth degrees of north latitude, and the·
seventy-ninth and eighty-second degrccs 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 Coramandcl coast by the
GuIf of Manaar, a narrow strait full of shoals and im-
passable by Iarge ships. It is distant abont sixty miles
from Cape Comorin, the southel'll part of the península
of India. lts breadth ís unequal at dífferent pIaces, but
its whole cireumference is computed to be about 900
miles. The small island of Jaffnapatam is situated at its
northern extremity, and forms part of the distriet of that
name. Trineomalee líes on the north-eastern part of the
island; Battiealoa on its eastel'l1 eoast; and Colomba on
its south-western. Kandy, the capital, is nearly in the
centre of the island, whieh in shape somewhat resembles
an egg pear. The general aspect of the country is
hilIy, the riehness of its produce is very considerable, and
various travellers have spoken of its beauty in tenns 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,
aud that almost aH 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 existence of this island ap-
pears, according to Arrían, to have been brought into
Europe by Nearchus and Onesicritus, who were comman-
ders of the Heet that Alexander despatehed from the Indus
to the Persian 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 Ceylonese monarch that the
latter despatched four ambassadors thither. In the latter
part of the thirteenth century Ceylon was visited by
Marco Polo, who, on his return, published an account of
it, whieh was deemed, in many parts, to be fietitious, till a
further aequaintanee with the island proved the general
aceuraey of the statements made by the Venetian travcllcr. -
About half a eentury 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 undel' Lorenzo
D' Almeida, the son of the Vieeroy of Goa, who had been
sent by his father to intercept some Moorish vessels in
passing the Maldives. Even upon their first visit the
Portuguese appeal' to have had address enough to pro-
cure a treaty of allianee, by whieh the Portuguese gua~
ranteed to defend the Emperor against aH his enemies,
while he undertook to pay his new alIies an annual tribute
of ~50,OOO pounds of cinnamon. Don Lorenzo ereeted
on the shore of the Bay of Galle a marble pillar, 011
whieh wcre engraven the arms of Portugal. In 1518
Alverenga, another Portuguese commander, sailed to
Ceylon with a Heet of nineteen ships, and proeeeded to
erect a fort. For doing this he had the authority of bis
own sovereign, and he pretended to have the pel'mission
of the Emperor of Ceylon. The permission howevel' was
denied; the Singalese attempted to impede the progre ss
of the work, and sorne of them were killed in the affray.
Alvarenga attacked tbem and eornpelled them to submit
to a treaty in whieh, amollg other conditions, it was stipu~
Jated that the Portuguese should be at liberty to ereet a




538 CEYLON.
fort at Colombo, that the Emperor should pay tú King
Emanuel an annual tribute of a certain number of precious
stones, six elephants, and 120,000 pounds of cinnamon~
'rhe 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, undel' 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 tbe view of having at hand a power tbat was a
rival to the Dutch, granted them leave to huild a fort in
the Bay of 'rrincomalee, as~isted 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 speedilyto return, which however he was pre-
vented from doing as his fleet was disperscd by the Dutch,
w ho took fuur of bis ships, and drove the rest ¡nto Surat.
'rhe Dutch admiral then sailed to the Bay of Trincomalee
and made himself master of the fort. In 1782 a British
fleet under the command of Sil' Edward Hughes, and
sorne land forces under that of Sir Hector Munro, made
themselves masters of Trincomalee. They were soon
afterwards dispossessed by the Fl'ench. The English
finall~ took possession of the Dutch settlements in Ceylon
in the year 1796. The cOllquest was easily achieved by
a body of forees undel' the command of Colon e! Stuart.
The conquered pl'ovinces 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 Cúmpany.
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 th1'ow 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 B1'itish settlements,




CEYLON. 539
who had resorted to a village within the Kandian limits
for their usual purposes of traffick, und who, without
having cornrnitted any crime 01' even having any.irnputed
to thern, were sejzed amI conveyed to prison. They were
an rnutilated in a most shoeking manner. Seven djed upon
the spot, and the remaining three arrived in Colombo
with their arms, noses, .and ears cut off. This aet 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 íled from his desperate and
atrocious cruelties. It left however no alternative but a
submission which the King was not likely to offel', 01' an
appeal to the sword. The first was deemed utterly hope-
less, and the second was resolved on. Although deprived
of the expected ajd of sorne troops from India, General
Brownrigg, relying as much on the universal hatred felt
for the tyrant as on his own means of attaek, 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 misealcu-
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 on the one part, the Adikars, Dessaves, and
other principal chiefs of the Kandian pl'ovinces 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.-GovernQr's Bulletin.-N arr. 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 the result of the very
short but important war which put
the w hoJe of Cey Ion into the posses-
sion of England. is drawn fl'om a
pamphlet published by Egerton of
Whitehall, and entitled "A Narra-
tive of Events that have recently hap.
heped in Ceylon, by a gentleman re-
sidenl on the spot." 1\1os1 of the
circumstances described in the N arra-


tive, especially that of the tnutilation
of ten British suhjecls, are stated in
the Governor's proclamation and otber
official documents appended to Ihe
Narrative. This pamphlet is quoted
with l'espect by Ihe author of the His-
tory of Ceylon, which was originally
published under the assumed name of
Philalethes, but which in the copy
deposited m tbe llritish l\luseum is
attributed lo 1\1r. R. Fellowes.






51.0 CEYLON.
an c1aim to tbat title, and was deposed from tbe office of
king; that the dominion of the Kandian provinces was
vested in the Sovereign of the British Empire, to be exer-
cised through the Govcrnol's and thcir accl'edited agents,
saving to the Adigars and others lawfully appointcd by
authority of the British government, the rights, privileges,
and powers of theil' respective offices, and to aH c1asses of
the people the safety of their persons and property, with
theil' civil rights and immunities, according to the laws,
institutions, and customs established and in force amongst
them.


The religion of Boodho, professed by thc chiefs and in-
habitants, was dec1al'ed inviolable, and its rites, ministers,
and places of worship were to be maintained and pro-
tected.


Every species of bodily torture, and an mutilation of
limb, member, 01' organ, wel'e prohibited and abolished.


No selltence of death was to be carried into execution
exccpt on the written warrant of the Governor, made on
a report of the agents of the govermnent, in whose pre-
sence an criminal tríals wel'e to take place.


Dispositions were then made for the administration of
justice till His Majesty's pleasure should be known, and
in the mean time 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 18 l 6, anel a change of the con-
stitution was made in consequence.


The following regulations were introduced. (Those re-
lating to judicial matters have sin ce been abolished by the
Charter of Justice.)-See the Charter, post, 544,.


The executive and judicial authol'ity 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 cIaimed in
lieu of an former taxes, except in certain loyal districts,
where only one-fourteenth was levied.


The lands of many inclividuals distinguished fol' loyalty
during the rebellion, those belonging to temples, to pub-
lic officers of the state, and the Chálíás 01' cinnamon
peelers, were exempt from all taxes.


The causes of minor importance wel'C heard by the go-




CEYLON. 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 appea! from infcrior to superior comts, and
ultimately to the Governor, was established.-Ency.
Metr.


PECULIAR OFFICES AMONG THE CEYLONESE.


The Singalese have certain established nationalIaws 01'
01<1 customs, according to which most things are deter-
mined, where the will of the King does 110t interpose to
make any alteration. The children inhel'it the landecl
property, which cIoes 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 sIave
by a free woman are free. A thief who cannot make a
sevenfold restitution becomes a slave. OId pcoplc 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, orvilIage,
is composed of sevel'al hamlets; a pattu, 01' district, of
severa! villages; a corIe, 01' county, of severa! pattuil; 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, th1'ee, 01' four attacol'aaIs under him,
according to the size of the corle and the number of
pattus into which it is divided. He has moreover from
six to eight lascaryns, pamideas, 01' messengers, subject to
his orders. The attacoraals are to see that these ordel's
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 annuaI imposts, to see that the land is s¡)wed




542 CEYLON.
and the harvest got in at the proper time, and to render a
good account 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 covered with the same. They
are also to attend to the 8upply of his food during his
stay.


Lianno is the same as clerk 01' scribe of the village,
who keeps an account, which he gives to the lord, of all
the products and dues thereof.


Canganeme is an officer who musters the people of the
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 particularly to measure the corn that was due as
an impost to the King.


GamllCwaja, a village Iascaryn, who at the orders of the
Kadan oI' 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-
Iage, and work by turns for the King 01' the proprietor.


Coolies, porters of aH kinds of burdens and bearers of
the palanquins. These coolies are of the cast 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 Justice 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 England.


The judges to hold office during pleasure.-Ss. 5, 6.
Three circuits are to be formed, the northern, southern,


and eastern.-S. 21.
District Courts, consisting of one judge and three ·as-


sessors, are to be established throughout the island. The
district judges to hold office during pleasure.-Ss. 23, 24.


The Supreme Court to be holden at Colombo.-S. ~8.




CEYLON.


The District Courts to have jurisdiction over aH civil
matte...:'!. ~i..t..Q..i..~ \,l".~ \\\\\\t'i!. \)f their respective distl'icts, and
over all criminal matters, except where the punishment is
death, transportation, 01' banishment, 01' imprisomnent for
more than twelve calendar months, 01' whipping exceeding
100 ]ashes, 01' a fine exceeding .i'lO.-Ss. :29, 30. They
are a]so 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 8upreme Court is to have an appelIate jurisdiction
ayer 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 oflEmces to be by a public
officer.-Ss. 46, 47.


Civil and criminal sessions shalI be helJ. at Colombo.-
S.52.


Questions of law may be reservecl at these sessions, ancl
general sessions shall be helcl 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, ancl the l'ight 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 tlme several
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 April, in the year of our Lord 1801, the 6th day of
August, in the year of our Lord 1810, and the 30th day of October, in
the year of our Lord, 1811, did establish within his said late Majesty's
settlements of the Island of Ceylon and the territories and dependencies
thereof, a certain court called the Supreme Comt of Judicature in ¡he
Island of Ceylon, and a certain other' court called the High Court of
Appeal in the Island of Ceylon, and did make cel'tain other provisions
for the due administration of justice in the said s~ttlt'men¡s, territories,
and depf,ndencies: And whereas since the day on which the last of the
said several charters and letters-patent bears date, a certain territory in
the interior of the said Island of Ceylon, called the kingdom of Randy,
01' the Kandyan provinces of the Island of Ceylon, hath become and
now is subject to his Majesty, whereby the whole Island of Ceylon with
its dcpendencies 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, shoulel extend 01' be deemed 01' construed to extend lO p,'e-
vent his said late Majcsty, his heirs and successors, from making such
fnrther 01' other provision rOl' the administration of justice throughout
the said settlements and territories in the saiel Island of Ceylon with their
dependencies, at his and their will and pleasure, and as circumstances
rnight requi.re, 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 eve''Y part
thereof, and especially touching the administration of justice therein,
and al! other mattm's and things in and by the saiel several charters
and letters-patent provideel for, as if the said several charters and
letters-patent had not heen maJe, anything thel'ein contained, 01'
any law, custom, usage, matter 01' thing whatsoever to the contrary in
anywise notwithstanding; AmI whereas it is expeJient to make {llore




CEYLON-CHARTER OF JUSTICE. 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
fun consideration of the premises, and of our certain knowledge and
mere motion, have thought fit to revoke and annul, and do hereby re-
voke and allnul each and every of the said charters and letters-patent,
such revocation to take effect at and from afler lhe time when (as here-
inafter mentioned) this our charler 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 exe(cise of original j urisdiction to the inhabitants of the said dis-
tricts and provinces, known respectively by the names and titles of lhe
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 jurisdietion whieh they
exercise within the limits of their respective districts or provinces:
Now know ye, that we upon full considcration of the premises have
tbought fit to direct, ordain, and appoint, that the said Provincial Courts,
the said Courts of the Sitting Magistrates,. the said Court of the Judicial
Commissioner, the said Court of the Judicial Agent, the said Comts of the
Agents of Government, the said Revenue Courts, and the said Court ofthe
Sitting Magistrate of the Mahabadde, shan 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 will come into
operation in our said island.


3. And whereas the Governor of our said island for the time being,
and the said Court of the Judicial Commissioner have hitherto exer-
cised an appellate jurisdiction for the administration of justice in cer-
tain cases arising in the Kandyan provinces of our said islands: And
whereas certain courts called the Minor Courts of Appeal, and certain
courts called the Minor Courts of A ppeal from revenue cases, have
hitherto exercised an appellate jurisdiction for the administration of
justice in certain cases arising in the maritime provinces of the said
island: And whereas the existence of several independent appellate
judicatures in the said island tends to introduce uncertainty into the
administration of justice there: Now know ye, that we upon ful! con·
sideration of the premises, have thought fit to direct and ordain, and do
hereby direct and ordain, that the said appellate jurisdictions of the
Governor of the said island, and of the said Court of the Judicial Com-
missioner respectively, shall be and the same are hereby respectively
abolished, and that the said Minor COUTtS of Appeal, and the said


N N




546 CEYI.ON-CHARTER OF JUSTICE.
Minor Courts of Appeal for revenue cases, and sueh their appe\\ate
jurisdietion, shall be and the same are hereby abolished.


4. A nd to provide for the administration of justice hereafter in our
said island, our will and pleasure is, and we do hereby direet, that the
entire administration of justice, civil and criminal, therein shall be
vested exclusively in the courts erected and constituted by this our
charter, and in su eh other courts as may be holden within the said
istand under any commission issued or to be issued in pursuance of the
statutes in that case made and provided for the trial of offences com-
mitted on the seas, or within the jurisdiction of our Lord High Admiral
or the commissioners for executing his office, or under any commission
issued or to be issued by our Lord High Admiral or by the com-
missioners for executing his office for the time being. And it is our
pleasure, and we do hereby declare, that it is not and shall not be com-.
petent to the Governor of o~r said island, by any law or ordinance to
be by him made with the advice of the Legislative Councit thereóf Ol
otherwise howsoever, to constitute or establish any court fOl the admi·
nistration of justice in any case, civil or criminal, save as hereinafter is
expressly saved and provided: Provided nevertheless, and we do
hereby declare, that nothing herein contained shall extend or he con-
strued to extend to prevent any persons from submitting tbeir differ-
~mces 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 ustiee shalI
be called and known by the name and style of "The Chief Justice of
the Island of Ceylon;" and tha! the said Chief Justice and Puisne Jus-
tices shall from time to time be nominated and appointed to such their
olfices by letters-patent, to be issued under the public seal oí the said
island, in pursuance of warrants to be from time to time issued by us,
our heirs and suecessors, under our or their sign manual, and shall
hold such their offices during the pleasure of Us, Qur heirs and succes-
sors.


7. And we do further direct and appoint, that upon the death, re-
signation, sickness, or incapacity oí the said Chief J ustice, or any of
the said Puisne Justiees, or in case oí the absence of any of them from
the said island, or in case of any. such suspension from offiee as herein-
after mentioned, of any such Chief Justice or Puisnf Justice, it shall
and may be lawful to and for the Governor of our said island for the
time being, by lettera-patents to be by him for that pUTpose made and




CEYLo~-CHARTER OF JUSTICE. 547
iSSlled llndcr the public seal of the said island, to nominate and ap-
point sorne nt 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 provisiona\ly until our pleasure can be known, and it is expe-
dient thal 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 mos! early, complete, and au!hentic information of the grounds of
such proceeding against him; We do therefore declare, direct, and
appoint, that it shalI 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 prooC oC 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 Secretaries of Sta te, the grounds and causes of such suspension;
and provided also, that a full statemeRt be entered on the minutes of
the said Exeeutive Council of tIJe grounds of such proeeeding, and of
the evidence upon which the same may be founded, a fuU eopy of
whieh minutes and evidence shall by such Governor be transmitted
to such judge, together with the order suspending him from such his
offiee.


9. And we do hereby reserve to Us, Our heirs and successors, with
the advice of Our or their Privy Council, full power and authority to
confirm or to disallow any such suspension from office as aforesaid of
any such Chief Justice or Puisne Justiee.


lO. And We do hereby give and grant lo Our said Chief Justice for
the time being rank and preeedence aboye and before all our subjects
whomsoever within the said island and its dependencies, exeepting the
Governor or Lieutenant·Governor for the time being thereof, and ex-


KN2




548 CEYLON-CIlARTER OF JUSTICE.
cepting such persons as by l.aw ~r 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 ils dependencies, excepting the
Governor or Lieutenant-Governor for the time being thereof, the said
Chief Justice, and the oflicer for the time being commanding our force s
in the said island and its dependencies, and excepting such persons as
by law or usage in England take place before our Puisne Justices of our
Court of King's Bench.


12. And we do hereby declare, that the said Puisne Justices shall
lake rank and precedence between themselves according lo Ihe.priority
of their appointments respectively.


13. And we do further grant, direet, ordain, and appoint, that the
said Supreme Court of tbe island of Ceylon shall have and use, as occa-
sion may require, a seal bearing a device and impression of our royal
arms, with an exergue or labe! surrounding the same, with this inserip-
tion, "The Seal of the Supreme Courl of the Island of Ceylon;" and
that the said seal shaIl be delivered to and shaIl be kept in the custody
of Ihe said Chicf Justicc, wilh full liberly lo deliver the same to any
Puisne Justice of the said court for any temporary purpose; and in case
{lf the vacaney of or suspension {rom the oflice of Chief Justice, the
same shaIl be delivered over to and kept in the custody of such person
as shaIl 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 sueh Chief Justice
or Puisne Justice as aforesaid shall be capable of accepting, taking, or
performing any other ofliee, place of profit or emolument within the
said island, on pain thanhe acceptance of sllch otber office as aforesaid
shall be ipso jacto an avoidance of such his oflice of Chief Justice or
Puisne J ustice, as the case may be, and the salary thereof shall cease
accordingly from lhe time of slIch acceptance of any other office or
place: Provided nevertheless, that no slIch Chief J ustice or Puisne J us-
tice shall be rendered incapable of holding his oflice, or shall forfeit his
salary by accepting (he oflice of Judge of the Court of Vice-Admira1ty
in the said island, or of commissioner for the trial and adjudicatioll of
pl'ize causes and other maritime questions arising in India.


15. And we do hereby constitute and appoint our· trust y and welI-
beloved Sir Charles Marshall, Knight, to be the first Chief Justice of the
said Supreme Court, and our trust y and well-beloved William Rough,
Esquire, Serjeant-at-law, to be the senior Puisne Justice of the said
Sllpreme Court, and our trust y and well-beloved William Norris,
Esquire, lo be the second Puisne Justiee of lhe said Supreme Court.
. 16. And we do herehy direct, ordain, appoint and declare, tbat there




CEYLON-CHArtTER OF JUSTICE. 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 courl for the
time being shall from lime to time appear to be necessary for the admi-
nistration of justice, and the due execution of the ¡1Owers and autho-
rities which are granted and committed to the said eourt by these our
letters-palent: Provided nevertheless, that no office shall be created in
the said court, unless the Governor of the said island for the time being
shall first signify his approbation thereof to Ihe 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 eourl shall he appointed lo sueh their
ofEces by us, or by the Governor of the said island on our behalf, hy
commissions to be for that purpose issued under the public seal oC the
said island: Provided nevertheless, that aH persons who shall be at-
taehed to or hold any office in the said court, as c1erk or private seere-
tary to any of Ihe judges thereof, shall be appointed to su eh office by
the judge for the time being whom su eh person may so serve in any
sueh capacity.


18. And we do furlher rlireet and appoint, that the several officers of
the said Suprems Court shall hold their respective offices during the
pleasure of us, our heirs and suceessors, and shall be subject to be sus-
pended from their offices therein by the said court for misconduct 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
all such 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 lhe
said Supreme Court shall refuse lo admil and enrol any person apply-
ing lo be admitted and enrolled as an advocate or proctor in the said
Supreme Courl, the judges of the said court shall in open court assign
and declare the reasons of refusa!'


20. And we do direct and declare, that no person whalsoever not so
admitted and enrolled as aforesaid, shall be allowed to appear, plead,
or act in the said Supreme Court, for or on beha!f of aoy otller person
being a suitor iI;l Ihe said court.


21. And WE' do further declare our pleasure to be, aod do hereby
ordain and appoiot, that for the purpose of the admioistration of juslice
under this our charter, the said island of Ceylon shall be divided into
the district of Colombo, -and three circuits lo be called respeclively tite
N orlhern Circuit, the Southern Circuit, aod the Eastern Circuit, aud
Ihal the said Northern Circuit shall comprise Ihe district of Jaffna, toge-
ther wilh the several districts which are pareel of the marilime provinces
of the said island, and which tic to the westward of the Kandyan pro-




550 CF.YLON-CHARTER OF JUSTICE.
vinees of the said island, between the said di~triet of Jaffna and the
district of Colombo; and that the said Southern Cireuit shall comprise
the distriet of the Mahagampattoo, and all the distriets pareel of the
maritime provinces of the said island Iying to lhe westward and south-
ward of the Kand1Rn provinces of the said island, between the distriet
of the Mahagampattoo and the distriet of Colombo; and that the said
Eastern Circuit shall comprise all the Kandyan provinces of the said
island, and al! the districts pareel of the maritime provinces 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 application to him for
that purpose made in writing, under the hands of the judges for the
time being of the said Supreme Court or the major part of them, but
not otherwise, by any proclamation or proclamations to be from time
to time for that purpose issued, to alter as 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 purpose which may
appear to the said Governor and the whole or the major part of su eh
judges, more conducive to the public convenienee and the effeetive
administration of justice in the said island.


22. And we do hereby authorize and require the Governor for the
time being of our said island, with the e9neurrence of the judges of the
said Supreme Court, or the major part of them, but not otherwise, by
any proclamation or proclamations to be by him for that purpose from
time to time issued, to suhdivide into districts each oi' the circuits 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 concurren ce, but not otherwise, to revoke, alter, and amend any
such proclamation or proclamations, as occasion may require, and
which appointment of the said eireuits and distriets shall be made in
such a manner as may best consist with and promote the prompt and
effeetual administration of justice therein as hereinafter mentioned:
Provided always, that until the said eircuits shall in manner aforesaid
be divided into distriets in pursuance 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 hereor be dcemed
and taken to be such districts as aforesaid.


23. And we do further grant, direct, and appoint, that within each
and every distriet of the said island there shal! be one eourt, to be
ealled the Distriet Court of sueh distriet; and that every such District
Court shall he holden by and before one judge, to be called the Dis-
trict J udge, and three assessors, and that every sueh Distriet J udge
shall be appointed to such his office by leuers-paten!, (o be for that
purpose issucd lInder (he publie seal of the said island, by the Gover-




CEYLON-CHARTER OF JUSTICE. 551
nor thereof for the time being, in pursuance of warrants lo be for that
purpose addressed to him by us, our heirs and successors; provided
that such Governor may and he is hereby authorized and required to
issue such letters-patent as aforesaid provisionally and subject to the
future signification of the pleasure of us, our heirs and successors, and
without any such warrant or warrants as aforesaid, on any occasion or
occasions on which it may be necessary to roake any such appointment
or appointments, before the pleasure of US, our heirs and successors can
be known.


24. And we do hereby declare, that the said district judges respec-
tively shall hold such their offices during the pleasure of us, our heirs
and successors.


25. And we do further direct and appoint, that the before mentioned
assessors shall be selected from amongst our subjects inhabiting the said
island, whether natives thereof or otherwise, and being respectable roen
of the full age of twenty-one years and upwards, and possessing such
qualifications as shall froro time to time be determined by any l'Ules or
orders of court to be made in the manner hereafter mentioned, and not
having been convicted of any infamous crime, nor labonring under any
such bodily or mental incapacity as wouId render thero unfit for the
discharge of that office.


26. And we do hereby reservE' to ourselves, our heirs and successors,
the right of appointing in each of the said District Courts one person
to act as a permanent assessor, but in respect of all assessors until any
such appointment shall be made, and after any such appointment shall
be made in respect of all assessors not so appointed, it is our pleasure,
and we do hereby direct and declare, that they shall be selected, sum-
moned, and required to serve in the said office, in such manner as
shall be provided by such rules and orders of court as are hereinbefore
particularly mentioned.


27. And we do hereby further direc.t, that the ministerial and other
subordinate officers of the said District Courts respectively shall re-
spectively be appointed to and shall hold such their offices therein in
such and the like manner in every respect as is hereinbefore provided
with regard to the ministerial and other officers of the said Supreme
Court; and that the admission and enrolment of persons to appear to
plead or act in anyoC the said District Courts as advocates or proctors,
shalI be regulated and provided for by such general rules and orders of
court as are hereinafter mentioned.


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 sueh circuits as are hereinafter mentioned, and that cvery
such District Court as aforesaid shall be holden at such convenient
place within every such district as the Covernor for the time of our
said island shalI from time to time for that purpose appoint by any




552 CEYLON-CIIARTER OF JUSTICE.
proclamation or proclamations 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 J urisdiction, and shall
have cognizance of alld full power to hear and determine all pleas,
suits, and actions in which the party or parties defendant shall be resi-
dent within the district in which any sueh suit or aetion shall be
brought,or in which the act, matter, or thing in respect ofwhich any
suit or action shall be brought, shall have been done or performed
within such district: Provided nevertheless, that no such District Court
as aforesaid shall 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 cognizabJe in
the court of any district immediately adjoining.


30. And we do further grant, direet, and appoint, that each of the
said District Courts shall be a Court of Criminal Jurisdiction, and
shall have fuI! power and authority to inquire of all crimes and of-
fences committed wholly or in part within the district to which sueh
court may beJong, and to hear, try, and determine all proseeutions
whieh shall be commenced against any person or persons for or in re-
speet of any sueh erimes or offenees, or alleged crimei or offences:
Provided al ways, that such criminal jurisdiction as aforesaid shall not
extend to any case in which the person or persons aecused 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 Jashes, or by fine ex-
eeeding .ftO.


31. And we do further grant, direct, and appoint, that eaeh of the
said District Courts shall have the care and custody of the persons and
estates of all idiots, lunaties, and others of insane or nonsane mind
resident within sueh districts respectively, with full power to appoint
guardians and curators of an such persons and their estates, and to
take order for the maintenance of such persons, and the proper manage-
ment of their esta tes, and to take proper securities for sueh management
from such guardians and curators, and to call them to account, and to
charge them with any balance which may be due to any such persons
aforesaid, or to their estates, and to enforce the payment thereof, and
to take order for the secure investment of any su eh balances, and such
guardians and curators from time to time to remove and replace as occa-
sion muy require.




CtYLOK-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
Jast 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 befo re them as and for the last will and testament oC any
person who may ha ve died within such districts respectively, and to record
the same, and to grant probate thereof, with like power and autbority
to appoint administrators for the administration or execution of the
trusts of any such lasí will and testament as aforesaid, in cases where
the executors or trustees thereby appointed shall not appear and take
out probate thereof, or having appeared and taken out such proba te,
shall by death or otherwise become incapable to carry any such 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 from 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 them expended in the
execution thereof, with like power and authority to call al! such exeCll-
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 Courls 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 ou1' 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 Distl'ict Courts respectively in such and the same manner as any
other suits and prosecutions; saving nevertheless and reserving to aH
Courts of Vice-Admiralty established or to be established within our
said island, an such rights, powers, jurisdictions, and authority as are
by law vested in them, 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 cogllizance of the
same suits, causes, actions, prosecutions, matters and things, is herein-
after expressly given by way of appeal to the Supreme Court aforesaid,
or to the respective judges thereof, and also save and except in so far
as an original jurisdiction in certain suits, causes, actions, prosecutions,
matters and things, i8 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 aud appoint, that every final sentenee
or judgment of the said District Courts respectively, and that every
interloeutory order of the said courts having the effeet of a final sen-
tenee or judgmeut, and that every order of any such court having the
effeet of postponing ¡he final deeision of any cause or prosecution there
pending, and any other order which to the judge of any sueh court
may appear of adequate importauee, sha11 by sueh judge be pronounced
in open eourt, and that such judge sha11 in all sueh cases state, in the
presenee 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 ally Bueh oeeasiou, togelher with his opi-
nion upon every sueh question, with the grounds and reasons of every
sueh opinion, and that every assessor 8ha11 also in open court, and in
the presence and heaTing of the judge and the other assessors, declare
bis opinion and deliver his vote upon eaeh and every question whieh
the judge shall have previously declared to have arisen for adjudieation,
whelher such questions shall relate to any malter of law or to any
malter 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 oí such judge sball prevail, and shall
be taken as the sentence, judgment or order of the whole court; but in
every sueh case a record shall be made and preserved among the re-
eords of the said court of tbe questions declared by the judge to have
arisen for adjudieation, and of the vote of sueh judge and of every
sueh assessor upon each sucb question.


36. And we do hereby grant, declare, direct, and appoint, that the Su-
preme Court of the islalld 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 la w which shall be com-
mitted by the said respective District Courts, and shall have sol e 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 furtller grant
to the said Supreme Court power, jurisdiction and authority to hold an
original jurisdiction for inquiring of aH crimes and offences committed
throughout the said island, and for the hearing, trying and determining
all prosecutions which shaH be commenced against any person or per-
sons for or in respect of any such crimes or off en ces, 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 eaeh 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 su eh
civil and criminal sessions of the said Supreme Court on such circuits
shall be so arranged as that all the judges of the said Supreme Court
shall never at the same time be absent from Colombo, and that al! 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 shal! 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.


89. And we do further direct, ordain and appoint, that at every civil
sessions of the Supreme Court to be holden on any such circuit as
aforesaid, three assessors ahall be associated with the judge, and that
every criminal sessions of the Supreme Court to be holden on any such
circuit, shall be holden before such judge and a jury of thirteen men,
which assessors and jurors shall be selected, summoned and required to
appear and serve in such manner and form as shall be provided by
such general rules and orders of court as hereinafter menlÍoned.


40. And we do will, ordain and appoint, that within each and every




556 CEYLON-CIIARTER OF JUSTICE.
of the said circuits respeetively all and every the appellate powers,
jurisdictions and authorities hereby vested in the said Supreme Court
sha)) be exercised hy the judge for the time being of such circuit, and
the assessors so to be assoeiated 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 sball 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, tbat at everyévil sessions
of the said Supreme Court so to be holden as aforesaid on every such
circuit, the said court sball proceed to hear and determine all appeals
which may be then pending from any sen ten ce, judgment, decree or
order of any District Court within the limits of such circuit, and to
affirm, reverse, correct, alter a~d vary every such sentence, judgment,
decree or order, according to law, and, if necessary, to remand to the
District Court for a further hearing, or for the admission of any further
evidence, any cause, suit or action in which any such appeal as afore-
said shall have been brought; and upon hearing every su eh appeal it
shaU also be competent to the said Supreme Court to receive and
admit, or to exclude and reject, new evidenee touehing the matters al
issue in any such original cause, suit, or action, as justiee may require.


42. And we do further direct and appoint, lhat the Supreme Court
aforesaid at every civil sessions to be holden on any sucb circuit as
aforesaid, shall have fuI! power and authority to grant and issue man-
dates, in the nature of writs of mandllmus, 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 action depending in an)' one
District Court in any such circuit to any other Distriet 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 sarne had so been cornmenced; 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 !aw and of fact arising for adjudication upon every appea!
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 queslion, with lhe grounds and reasons of every such opinion;
and that every such assessor shall thereupon also in open court, and in
the presenee and hearing of sueh judge and lhe other assessors, declare
!,¡s opinion and de!iver his vote upon eaeh and every question which
the judge shall have previously declared lO have arisen for adjudieation,
whether such yuestion shall,relale lo any malter of law or to anymatter
of faet; and in case of any differcnce of opinion between any such
judge and the majority or the whole of such assessors, upon any ques-
tion of law or of faet depending upon such appeal, the opinion of such
judge shall prevail, and shall be taken as the sentence, judgment or
order of the whole comt; but in every su eh 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 su eh 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 Suprcme Court lo be holden on any such
circuit as aforesaid, such court shall proceed to hear and determine all
appeals which may be tiJen depending from any sentence or judgment
pronouneed by any District Court within the limits of any such circuit
in any criminal prosecution, and to affirm, reverse, correet, alter and
vary every such sentence and judgment according to !aw: and upon
hearing every such appeal it shall also be competent lo the said Su-
preme Court to receive and admit, 01' to excJude and reject, new evi-
dence touching the malters at issue in any such origioal proseeution as
justice may require; and jt sball also be lawful for the said Supreme
Court at any sueh criminal sessions as aforesaid, to make order for the
transfer of any prosecution depending in.any one DistrictCourt in su eh
circuit to any olher District Court within thé same circuit, if it shall be
made to appear to the satisfaetion of the said Supreme Court at any
sueh criminal sessions as aforesaid, that there is any suffieient cause or
reason to eonelude that in sueh particular prosecution justice would
not probably be done in the District Court in which the same had been
so eommeneed; and in every such case the Djstrict Comt to which any
sueh prosecution shall be so transferred shall take cognizance thereof,
and shal! have power and jurisdietion for the hearing, trial and decision
of the same, as fuUy and effectually to al! intents and purposes as the
Distriet Court in whieh the same was origilÍally brought could or might
have hado


45. i\nd we do furlher declare and ordain, that notwithstanding the
right of appeal hereby given from the judgments and sentences of the




,


558 CEYLON-CHARTER OF JUSTICE.
saiel 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 01' judgment pronounced by any Buch District Court upon any
prosecution, unless the judge of such District Court shall in the exercise
of his discretion see fit to make order fol' the stay of any such execution
pending such appea\.


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, (or the
trial of which such original jurisdiction as aforesaid is by this our char-
ter vested in the said Supreme Court, and which the King's Advocate ar
Deputy King's Advocate shall elect to prosecute before such Supreme
Court, and shall hear, try and determine all pl'osecutions which shall be
commenced by the said King's Advocate or Deputy King's Advocate
against any person 01' persons for ar in respect of any such crimes 01'
offences, 01' alleged crimes 01' off en ces.


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 pl'osecuted i and that all fines,
penalties and forfeitures recoverable therein to our use, shall be sued for
and recovered in the name of our Advocate Fiscal of our said island,
and by him or by sorne Deputy Advocate Fiscal,(l) by un information
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 Buch rules and -orders of court as
after mentioned, to make any other and more convenient provision for
the prosecuting befo re the said District Courts breaches of the peace,
petty assaults and other minar offences of (he like nature.


48. And we do further direct and ordain, that all questiolls of fact
upon which issue shall be joined at any such criminal sessíons as afore-
said of the said Supreme Court, on any such círcuit 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 tenns "Advocate
Fiscal" and "Deputy Advocate Fis-
cal" are used here, Lord Goderich in
his Despatch, dated 23d March, 1833,
accompanying the charter, and ad.
dressed to Sir R. J. Wilmot Horton,
the Governor, declares the objections


that exist to these titles, and ob·
serves, that .. the titIes of those offi·
cers are altered by the charter" to
the King's Advocate and Deputy
King's A dvocate. The use of the
former titles in this place seems there-
fore lo 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 adjudieation at any sueh criminal sessions as
aforesaid of the said Supreme Court in any sueh eireuit as aforesaid,
shall be deeided by the judge presiding at sueh sessions, who shall pro-
nounce his judgment thereupon in open court, 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 collectively at their general sessions, in manner
hereinafter mentioned.


50. And we do further appoint, declare and direet, that in everycase
where any person shall be adjudged to die by any sentenee of the
Supreme Court of our said island at any sueh criminal sessions as afore-
said, the execution of such senteuce shall be respited until the case of
such person shall have been reported by the Chief Judge or Puisne
J ustiee who shall have presided at such trial to the Governor of the said
island for the time being, which report shall be made as soon after the
passing of sueh sentence as conveniently may be.


51. And we do further apPQint, 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 direcled to all and every the fiscals or other keepers of
prisons witbin the limits of his circuit, to certify to the said judge the
several persons thell in their or any of tbeir custody, committed for and
charged with any crimes or offences whatsoever; and the said fiscals or
other keepers of prisons shall and are hereby required to make, eertify,
and transmit due returns to such mandate, by specifying in a caleudar
or list, to be annexed to such mandate respectively, the time and times
when all and every of the said persons so in their custody was or were
committed, and by whose authority particularly, and on what charge or
charges, crime or crimes respectively, in writing; and to the said list or
calendar shall also be annexed such information or informations, upon
oatb, as may have been taken against them or any of them, and be then
remaining in the hands of the said fiscals or keepers of prisons, or true
copies thereof attested by the said fiscals or keepers of prisons re-
spectively; and if need be, according to the tenor and exigen ce of su eh
mandate, such fiscal or keepers of prisons shall bring the said persons
so in their custody, or any of them, before the said judge, wheresoever
the said judge shall then be holding the criminal sessions of the said
Supreme Court, together with sueh witness or witnesses whose name or
names shall appear to be written or indorsed on the respective commit-
ments, by virtue of which such prisoners or prisoner were or was de-
li vered into their custody respecti vely, in order that such prisoners or
prisoner may be dealt with according to law: Provided always, that
wherever any parly or parties shall, after Ihe making out of any sueh


,




560 CEYLoN-CIIARTER OF JUSTICE.
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, be apprehended or committed on any
criminal charge, it shall and may be lawful for the officer of such Su-
preme Court to insert the name or names of such person or persons in
such calendar or 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 jurisdiction, and bold 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 pl'esiding at such sessions to be a question of doubt
and difficulty, it shall be lawful for su eh judge to reserve su eh question
of law, pleading, evidence, or practice, for the decision of the judges ol'
the said Supreme 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 direct 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, evideuce, or pnlctice 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 circuÍts as aforesaid, and at the sessions so
to be bolden for the district of Colombo, to inspect and examine the
record s of the different District Courts; and if Ít shall appear that con-
tradictory o\' inconsistent decisions have been given by different District
Courts, or by the same District Court upon different occasions, upon
any matters of law, evidence, pleading, or practice, then and in every
such case the said judges of the Supreme Court shall report to the


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 shall, after due consideration of the mat-
ters so brought before them, prepare the draft of such a declaratory law
upon any malter 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 eourt to the Covernor for tbe time bein of our said




CEYLON-CHARTER OF JUSTICE. .161
island, who shall thereupc\!1 lay the draft of sueh declaratory law before
the Legislative Council of the said island for their consideration.


56. And we furlher direet and ordain, that the said Judges of the
Supreme Comt shall, in pursu:mee of the powers hereinafter vested in
them, after due eonsideration 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' practice, make 01' eslablish such
general rules and orders of courl for the removal of any doubts respect-
ing any such matters, as the occasion shall appear lo Ihem lo require.


57. And we do furlher ordain aad appoint, thal the said Supreme
Courl, or any J udge thereof, at any sessions so to be holden as aforesaid
on any such circuit as aforesaid, 01' in the distl'Íet of Colombo, 01' at any
general sessions of tlle J udges of the said Court collectively, shall be and
are hereby authorized to grant and issue mandates in the nature of writs
of habeas corpus,.and to granl 01' refuse such mandates, to bring up the
body of any person who shall be imprisoned within any part of the
said island or its dependencies, and to discharge 01' remand any
person so brought up, 01' otherwise deal with such person according
to law.


58. And we do further direet and appoint, tbat the said Supreme
Court, 01' any judge thereof, al any sessions so to be holden on any such
circuit as aforesaid, 01' in the district of Colombo, or at any general
sessions of the said court collectively, shall be and they and he are and is
hereby authorized to grant and issue injunctions to prevent any irre-
mediable mischief which might ensue before the parly making applica-
tion for SQch injunction eould prevent the same, by bringing an action
in any District Court: Provided always, that it shall not be lawful for
the said Supreme Court, nor for any Judge thereof, in any case to grant
any injunetion to prevent any person from suing or prosecuting a suit
in any District Court, or to prevent any party to any suít in any Dis-
triet Court from appealing or prosecuting an appeal to any Court of
Appeal,or to prevent any parly to any suit in' any Court of Original
J urisdietion, 01' in any COUl't of A ppeal, from insisting upon any ground
of action, defence, 01' appea\.


59. And whereas it may be expedient that the Judges of the said
Supreme Court at Colombo, previously to the commeneement of any
such circuits as aforesaid, should be enabled to inspect and examine
the reeords of the said Distriet 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 sueh appeals should take place
before the judges of the said court collectively at their general sessions
at Colombo, and not at such circuits as. afol'esaid; and it may also be
cOl1venient, that in certain casE'S the Judges of the said Supreme Comt


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 COUTt,
by such general rules and orders as hereinafter mentioned, to require
the said District Courts 10 transmit to them at Colombo the records of
such Distrjct Courts in any cases upon which appeals may have becn
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 furtber
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 charter, and for the more prompt and effectual administra-
tion of justice in our said island, it is necessary that regulations should
be made respecting the course and manner of proceeding to be observed
¡lnd follow~d in aH suíts, actions, and criminal prosecuti'ms, and other
proceedings whatsoever, to be brought, commenced, had, or taken
witbin the ~aíd District Courts and the said Supreme Courts respec-
tively, whieh 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 Ihe Judges of the said Supreme Comt colIectively, at any
general sessions to be by them holden at Colombo as aforesaid, from
time to time to frame, constitute, and establish su eh general rules and
ordel'$ of COU!,! as to them shaH seem meet, touching and coneerning the
time.and place of holding any general sE:ssions of the Judges of the said
Suprewe Court collectively, and any civil Of criminal sessions of the
said Supreme Court on any such circuits as aforesaid, or in the district
of Colombo and the said several District Courts, as shall not be ineon-
sistent witb the authority hereinbefore granted to the Governor of our
said island respecting the appointing of the times at which and the
places to which the Judges of the saiel Supreme Court shall perform
their circuits, together wilh such general rules and orders as to them
shall seem meet, and touching and coneerning the form and manner of
proceeding to be observed in the said Supreme Court al any general
sessions, and at such civil and criminal sessions as aforesaid on such
circuits as aforesaid, or in the district of Colombo and in such Dislriet
Courts respeetively, and touching alld concerning the practice alld




CEYLON-CHARTER OF JUSTICE. 56:l
pleadings upon al! 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 pracess of the
eaid courts, and the mode of executing the same, the qualifications, sum-
maning, impannelling, and challenging of assessors, and the summon-
ing, impannel!ing, and 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-
sonel'S in their custody, and respecting the mode of prosecuting such
appeals as aforesaid from the said District Courts, the admission of
advocates and proctors in the said courts respectively, together with all
such general rules and orders as may be necessary for giving fuH and
complete effecl to the provisions of this present charter. in whatsoever
respects the form and manner of administering justice in the several
courts hereby constituted, and an such rules, orders, and regulations
from time to time to ~voke, alter, amend, and renew, as occasion may
requil'e: Provided al ways, that no such rules, orders, or regulations
shall be repugnant to this our charter, and that the sarue shall be so
framed as to promote, as fal' as may be, the discovery of truth and
economy and expedition in tbe 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 mosl public and authentic' manner iR
the said island, as long before the same shall operate and take eff~t aS
to sucb Judges may appear practicable and convenient, and provided
always, that al! such rules, orders, and regulations shalJ forthwith be
transmitted to liS, our heirs, and sliecessors, under the seal of the said
court, fol' OU1' or their approbation 01' disallowance.


61. And we do fUl'ther grant, ordain, direct, and appoint, that it shall
be lawful fol' any person 01' persons being a party or parties to any eh-U
suit or action dependillg in the said Supreme Courl, to apPllal to us,
our heirs, and successors, in ou1' 01' their Pl'ivy Councíl, against any
final judgment, decree, 01' sentence, or against any rule or order made
in any such civil suit 01' action, and having the effect of a final Ol defi-
nitive sentenee, and which appeals shall be made subject lo the mIes
and limitations following; that is to say, First, that before any such
appeal shal! be so brought, sueh judgment; decree, sentence, will, Uf
order shall be brought by way of review before the Judges of the said
Supreme Court eolIectively, holding a general sessions at C.olombo, al
whieh all the said Judges of the said Supreme Court shall be present
and assisting, which J udges shall by such rules and orders as aforesaid
regulate the form and manner of proceedillg to be observed in bringing


- 002




564 CEYLON-CHARTER OF JUSTICE.
every such judgment, decree, sentence, rule, Of order by way of review
before them, and shall thereupon pronounce judgment according to law,
the judgment of the majority of whieh J udges shaJl be tahn and recorded
as the judgment of the said court colleetively. Secondly, every such
judgment, decree, order, or sentenee from which an appeal shall be
admitted to us, our heirs, and successors as aforesaid, sball be given or
pronounced for or in respeet of a sum or mattcr at issue auove the
amount Of value of .f500 sterling, Of shall involve dil'eetly or indireetly
the title to property or to sorne eivil right exceeding the value of .f500
sterling. Thirdly, tbe person Of persons feeling aggrieved by such
judgment, decree, order, or sentence, shall within fourteen days next
after the same shall have been pronouneed, 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 Of parties who is or are adjudged to pay any
sum of money or to perform any duty, the said 'Supreme Court shall
direet that the judgment, decree, or sentence appealed {rom shall be
carried into exeeution, if the party or parties· respondent shall give
security for the immediate performance of any judgment, decree, or
sen ten ce 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, decree, order, or
sentence appealed from shall be stayed. Fifthly, provided nevertheless,
that if the party or parties appellant shall establish. to the satisfaction
of tbe said Supreme Court, that re a! and substantial justice requires
that, pending such appeal, execution sbould be stayed, it shall be law-
fui for such Supreme Court to order the execution of such judgment,
decree, order, or sentellce to be stayed pending such appea!, if the
party or partíes appellant shall give security for the iromediate per-
formance of any judgment, decree, or sentence which may be pro-
nounced or made by us, our heirs, and successors, in our or their Privy
Council, upon any such appea!. Sixtbly, in all cases security shall be
given by the party or partíes appellant 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 Ihe party or parties respondent. Seventfíly,
the court froro which any such appea! as aforesaid shall be brought,
shalJ, subject to the conditions hereinafter mentioned, determine the
nature, amount, and sufficiency of the several securities so to be laken
as aforesaid. Eighthly, provided nevertheless, thal in any case where
the subject oflitigation shall consist of irnmoveable property, and the
judgment, decree, order, or sentence appealed from shall not change,
affect, or relate 10 the actual occupation Ihereor, no security shall be




CEYtON-CIIARtER OF JUSTICE. 565
demanued either from the pal'ty 01' parties respondent, 01' from (he party
01' parties appellant, for the performance of the judgment or sentence lo
be pronounced or made upon such appeal; but ir such judgment,
clecree, order, or sentence shall change, affect, or relate to the oecupa-
tion of any such property, then such security shall not be of greater
amount than may be necessary to secure the restitution, free from all
damage or los8, of such property, or of the intermediate profit which,
pending any such appea!, may probably acerue from the intermediate
oecupation thereof. Ninth!y, in any case where the subject oflitigation
shall consist of money or other chattels, or of any personal debt or
demand, the sccurity to be demanded, either from the party or parties
respondent, or from the party or parties appellant, for the performance
of the judgment 01' sentenee to be pronouneed or made upon sueh
appeal, shall be either a bond to be entered into itl the amount or value
of such subjeet of litigation, by one or more sufficient surety or sureties,
or such security shall be given by way of mortgage or voluntary con-
demnation of or upon some immoveable propfrty situate and being
within such island, and being of the full value of such subject of
litigation, over amI aboye the amount of all mortgages and charges of
wbatever nature upon or affecting the same. Tenthly, tbe security to
be given by the party or parties appellant for the prosecution of the
appeal and for tbe payment of costs, shall in no case exceed the sum of
.f300 sterling, and shall be given either by such surety or suretíes, 01'
by such mortgage or voluntary condemnation as aforesaid. Eleventhly,
ir the security to be given by the party or partíes appeUant for the pro.
secntion of the . appeal and for the payment of such costs as may be
awarded, shall iu mauner aforesaid be completed within three months
from the date of the petition for leave to appea!, 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 ns, our heirs, and successors, in our or· their
Privy Council, in such manner and under such rules as are observed in
appeals made to us in our l'rivy Council from our plantatíons or
coloníes. Twelfthly, provided nevertheless, that any person or persons
feel.ing 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, shall be and ís herebyautborized by
his, her, or their petition to us in our Privy Council, to apply for redress
in lhe 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,
lo admit and receive any appeal from any j udgment, decree, sen ten ce, or




566 CEYLON-CHARTER OF JUSTICE.
order of the said Supreme Court, on the humble petition of any person
or persons aggrievcd thereby, in any case inwhich, and subject to any
contlitions or restrictions upon and under which it may seem meet to
us, our heirs, and successors, so to admit and receive any sucll appea\.


63. And we do further direct and ordain, that in al! cases of appeal
allowed by the said Supreme Court, or by us, our heirs, and successors,
such coutt sllaU, on tbe application and at the costs of the party oto parties
á~ltant, 'ccrtify and transm1t t'ó us, our heirs, and successors, in our
~r their Frivy Council, a true and exact copy of al! 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 lhe 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 ¡nto immediate effect, such judgments and
'omrs M we, our heirs, and successors, in our or their Privy Council,
shall make therellpim, in such manner as any original judgment or de-
cree of the said Supreme Court can or may be exeeuted.


65. And we do further ordain and direet, that al! laws, customs, and
usages, now 01' at any time hereafter established or in force in the said
island, so far as such laws or usages are in anywise repugnant to or at
variance with this present charter, shall be and the same are hereby
revoked, abrogated, rescinded, and annulled.


66. A'nd we do funher declare, that for the purpose and within tbe
meaning of the present charter, any person lawfuny 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 direet, that at the expiration of
two calendar months next after the arri val within the said island of these
pteserits, or at such earlier period as the Covernor for the time being of
the said tsland shall, by a proclamation to be for that purpose issued,
'a'ppoint, this 'OUT charter shaH come int-o operation within the said
island; and from that time furward every suit, action, complaint, mat-
ter, or tbing which llhall be then depending bElfore any tourt admimster-
ing justice by original or appellate jurisdiction in the said islalld and
its dependencies, shall and may be proceeded llpon in the court in
which it ought to havE' beeu institllted, 01' to which it ought to have be en
'carned up in appeal, if it had been instituted or carried up in appeal
after the time when the provisions herein contained shall have come


,juto operation; and al! proceedings which shall hereafter be had in such
suit, action, complaint, matter, or thing respectively, shall be conducted
in like manner as if such suit, action, complaint, matter, or thing had
been instit¡lted 01' catried up in appeal in or to such lasl-mentioned




CEYLON-CHARTER OF JUSTICE. 561
court; and all the records, muniments, and proceedings whatsoever
belollging 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 w hen the pro vis ion s herein contained
shall have come into operation.


68. And we do hereby strictIy charge and command al! Governors,
Commanders, 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 I/.ssisting and
obedient in all tbings, as they will answer the contrary at their peril.


69. Provided always, tbat nothing in these presents contained, or
any act which shal! be done under the autbority thereof, sball extend or
be deemed or construed to extend to prevent US, our heirs, and succes-
sors, byany other letters-patent to be by us or them from time to time
for that purpose issued under the great seal of the United Kingdom,
from revoking this OUT charter or any part thereof, or from making such
further or other provision for the administration of justice throughout
the said island and its dependencies, at our and their wil! and pleasure,
as circumstances may require; we meaning and intending fully and
absolutely, and to all intents and purposes whatsoever, to reserve to
ourselves, our heirs, and successors, such and the sarue righls and
powers in and over the said island and its dependencies, and e~pecial1y
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, CUII-
tom, usage, matter, or thing whatsoever to the contrary in anywise not-
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 Sea!.
(Countersigned) BATHURST.


SUPPLEMENTARY COMMISSION.


WILLIAM the Fourth, by the Grace of God, of the United Kingdom of
Great Britain and Irli:1and King, Defender of tbe Faith, To our right
trust y and well-beloved councillor, Sir Robert John Wilmot Horton,




5GB CEYtoN-sui'rI.ElYlJ<:NTAHY COllIMtSSION.
right greeting: Whereas by Jcttcrs-pateot under the great seaJ of our
United Kiogdom of Great llritain and Ireland, beariilg date at West-
minster, on the 23d day of April, 1831, in the first year of our reign,
we did constitute and appoiot you to be, during onr \ViII and pleasure,
our Governor and Commander-in-Chief in and over our seulements 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 behaJf directed, and diu thereby
give and grant to you tbe said Sir Robert John Wilmot Horton, full
power and authority, with the auvice and conseút of the said Council
of Governmcnt, to make, enact, ordain, and establish laws for the
order, peace, and good government of our said island, subject to all
such rules and regulations as tberein mentioneu: Now we do hereby
revoke so much of the said letters-patent as relates to the said Council
of Government; and we do heteby further declare our pleasure to be,
and do grant, ordain, and appoint, that there shaH be withill our said
island of Ceylon two separate Councils, that is to say, one Couocil to
be called the Legislativc COllncil, and the other Council to be called
the Executive Council: and we do direet tbat lhe said Councils shall
respectively be constituted in such manner as is .in that behalf dil'ecteu
by the instructions herewith given to you, or according to such further
powers, instructions, and authorities as shall at any future time be
granted to 01' appointed for you under our signet and sign manual, 01'
our order in our Privy Council, or by us, through one of our principal
Secretaries of State: And we do hereby give anu grant to you the said
Robert John Wilmot lIorton, fllll power and authority, with the auvice
and consent of the said Legislative Council of our said island, to make,
enact, ordain, and establish laws for the order, peace, and goocl go-
vernment of our said island, subject nevel'theless to al! such rules and
reguJations as by the instructions herewith given to you, we have thougbt
fit to prescribe in that behalf: Provided nevertheless, and we do
hereby reserve to cursel ves, our heirs, and successors, our and their un·
doubted right and authority to disallow any such laws,and to make and
establisb frem time to time, with the advice and ·consent of Parliament,
01' with the advice of our or their Privy Couocil, a11 su eh laws as may
to us or them appear necessary to the order, peace, and good govern-
ment of OUl' said island and ils dependeocies. as fully as if these
presents had not been made. In witness, &c., witness, &c. And fol'
so doing this shall be your warrant. Given at our Court at Sto James's,
tbe 19th day of Mareh, 1833, in the third year of our reign.


By His Majesty's command.
GODERICH.




CEYLON-SUPPLEMENl'ARY COMMISSION. 569


WILLTAl\l R,
Iust/'/lctiol1S lo 0/11' right trust!! ami well-belotled Cuuncillol', Sir


Rubert Jolm Wilmot Hortun, F:nigllt, Oll/' Gurernor and COlll-
mandel'-in-C/¡iif in ond ove/' ollr Island o/ Ceylon alul ¡ts de-
pendencies. Givcn at om' Court at Sto James's, the 20th day (!I'
MarcJ¡, in thc thil'd year of OUl' l'eigl1.
1. \VUEREAS by a commission undel' our great seal of our United


Kinguom of Creat Britain anu Ircland, bearing date the Q3d day of
April, 1831, in the first year of our reign, we oid constitute and appoint
you, cluring out' pleasure, our Governor and Commander-in-Chief of
and over our island of Ceylon, in the Inoian Seas; ano by certain
letters-patent, bearing oate the 19th day of March instant, in the third
yeal' of our reign, we did revoke certain parts of that commission, and
oid declare our pleasure lo be, that there should be within our said
island two separate Councils, to be called respectively the Legislative
Council and the Executive Council: And whereas by the said commis-
sion and letters'patent respectively, we did, amongst other things, refer
to and require you to conform to ano observe such general instructions
as are therein respectively mentioned: And whereas the general instruc-
tions under our signet and sign manual, referred to in your said com-
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 instructions, and to substitute the general instructions following :
Now, therefore, we do hereby declare our pleasure to be, that the said
general instl'llctions of the 30th day of A pril, 1831, shall be and the
sume are heL'eby absolutely revoked and annulled aecordingly; we
hereby in place and stead thereof substituting and requiring you and al!
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
instructions, already taken the several oaths therein mentioned, it is om'
will and pleasul'e that the Lieutenant-Governor, or oflicer who, in the


'event of your death or absence from the said island, may be appointed
to the temporary administration of the goyernment in our said island,
shal! on his assuming and entering upon the execution ofsuch oflice, with
al! due solemnity, cause our commission to be read anu publi~hed in
the presenee of the Chief Judge and members of the Executive Council,
and shall then anu there take the oatbs appointéd to be taken by an act
passed in the first year oC the reign oC King George the First, intituled
" An Act for the further security oC His Majesty's person and gove¡n-




570 CEYLON-SUPPLEMENTARY COMM1SSION.
men~ and the successÍon ortbe Crown Ín tbe heirs of lIJe late Princess
Sophia, being Pl'otestants, and fol' extinguishing the hopes of the pre-
tended. Prince of 'Vales and his open and coneealed abettors," as
altered and explained by an aet passed in the sixth year of bis late Ma-
jesty King George tl¡e Tbird, intituled, "An Aet for altering the Oath
of Abjuration and Ihe Assurance, and for amending so much of an aet
of the seventh year of ber late Majesty Q\!een Anne, intituled, 'An Act
for the Improvement of the Union of the two Kingdoms, as after the
time therein limited requires the delivery of certain Iists and copies
therein mentioned to persons indicted of high treason or misprision of
treason,'" or 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
theFourlh, intituled, "An Act for the Relief of His Majesty's Roman
Catholic Subjeets," according 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 fol' the due
and impartial administration of justice; and further that you do take
the oath required to be taken by the Governors of plantations, to do
their utmost that the severallaws relating to trade and to the plantations
be duly observed, which said oaths (he Chief Judge for the time being
of onr said island shall and he is hereby required to tender and admí-
nister to you; all which being duly performed, the Governor, Lieutenant-
Governor, or officer appointed as aforesaid, shall administer to the said
Chief Judge and to the members her€inafter appointed of our said
Executive Council, and of the Legislative Councilof the said island
respeetively, such of the oaths mentioned in the said several acts
as shalI 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 (he due execution of
their places and trust3 respectively, all which oaths shaIl also be admi-
nistered by the Governor, Lieutenant-Governor, or person administering
the government of our said island for the time being, to all scch persons
as shaIl hereafter be appointed to be members of our said Couneils re-
spectively, before tbey respectively enter upon Ihe execution of the du-
ties of such their office.


3. And we autllOrize and require the Governor, Lieutenant-Governor,
or officer administering the governm€nt as aforesaid of our said island;
from time to time and at any time hereafter, by himself, 01' by any other
to be anthorized by you in that behalf, to administer and to give to al!
and every such person 01' persons as yon or he shaIl think fit, who shalI
hold any office or place of trust 01' profit, or w ho shaIl at any time or
times pass into our said island, 01' be resident or abiding (here, snch


..




CEYLON-SUPPLEMENTARY COMMISSION. 571
of the said oatbs in tbe said several acts contained as sball be ap-
plicable to the case of the individual to whom the same shall he admi-
nistered.


4. And wbereas by the said letters-patent nnder the great seal of our
United Kingdom of Great Britain and lreland, bearing date the 19th
day of March, 1833, wedeclared our will and pie asure that there should
be within our said island of Ceylon a CQuncil, to be caBed the Legisla-
tive Council of our said istand, to be constituted in such mauner as iu
your general instructions in tbat behalf sbould be directed: Now we
do bereby signify and declare our pleasure to be, that the said Legisla-
tive Conncil of our said island of Ceylon 5hall always consist of fifteeu
pel'sons, of wbom nine shall at all times be p€rsons holding oBices within
the said island at our pleasure, and tbe remaining six shaU at all times
be persons not holding any Buch offi~.


5. And we do hereby declare and appoint that the Chief Justice of
the Supreme Court of OUf said island for the time being; the senior
officer for the time being in eommand of our [and forces in the said
island, and not being in the ad ministration of the government thereof;
the Colonial Secretary fol' tbe time being; the Auditor-General fol' the
time being; the Colonial Treasurer for tbe time being; the GovBrnment
Agent fol' the \Vestern Province for the time being; th€ Government
Agent for the Central Provinee fol' the 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 eXec1!J.ting the duties 6Í fue
said several offices,ol' any of thBm, during th€ absence, or suspension,
or incapacity, or upon tbe death 01' resignation of any such officers, shall,
during tbe performance of any such duties, be Ihe official members of
the said Legislative Council, as fully and effectually as though they had
been by us appointed to such their offices.


6. And we do further declare and appoint ibat six persons, lo be by
you selected for that purpose from and out of too ehief landBd ¡rroprie.
tors and principal mel'chants oftbe said island, who have been actually
resident fOT a period {)f not less than two years in the said island, snal!
be the urst or original un.official.members oí the ·said Legislative Coun-
cil, and shaU respectively hold their places therein during OUT pleasure,
and which fil'st OT original un-official members shall by you be ap-
pointed by commissions to be fol' tbai purpose ¡ssued under the public
seal oí om' said island.


7. And upon the deatb, incapadty, absence from the said island, sus-
pension, 01' l'esignation of any of the said un-official membel's of the
said Legislative Council, we do authorize and empower·you to nominate
and appoint by a commission, to be fol' that purpose issued under the




572 CEYLON-SUPPLEMENTARY COMlIUSSION.
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, wbo
sball be so appointed only unlil 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 confirmed or disallowed as we sball see occasion.


9. And we do furtber declare our 11leasure to be, that the said Legis-
lative Council shall not be competent to act in any case unles8 six mem-
ber8 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 Councí!.


10. And we do further declare, that in the said Legislative Council
the official members shall take preceden ce of the un-official members,
and that the official members shall bctween themselves take precedence
according to the order in which their respective officés are hereinbefore
enumerated, and that the said un-official members shall among them-
selves take precedence according to the priorities of their respective
appointments.


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 saíd Legislalive
Coun;;il shall be decided by the majority of votes, it being our pleasure
that you, or the member presidillg in yOU\' absence, shall have an
original vote in common wilh the other membcrs of the said Council,
as also a casting vote, if upon any question the votes shall be equally
divided.


12. And for insUI'ing 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 theír adoplion
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 the 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, or to the said letters.patent, or
to these your general instructions,or to any other instructions which you
may receive from us, shall at aH times be followed and observed, and
shaU be binding upon the said Legislative Council, unless the same ar
any of tbem 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 a1l such rules and regulations as
by our general instructions we should think lit to prescribe in Ihat behalf:
Now we do hereby declare the following to be the severall'ules and
regulations so mentioned and referred lo in your said commission.


14. Jt is our will and pleasure and we do hereby direct, that no law
01' ordinance shall be made or enacled by the said I,egislative Council,
unless the same shall have been previously proposed by youl'self, and
that no question shall be debated at the said Council, unless the same
shall lirst have been proposed for that purpose by you.


15. Provided nevertheless, and it is our pleasure, that if any member
of the said I,.egislative Couueil sha1l deem any law lit to be enacted by
the said Couneil, 01' any question proper to be there debated, and shall
of such his opinion tl'ansmit a written statement to you, it shall be law-
fuI 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 furthel' direct that minutes be regularly kept ofthe
proceedings of the said Legislative Council by the Colonial Secretary
or his assistant, and that the said Legislative Council shall not ever
"proceed to the despatch of business until the minutes of the last pl'e-
ceding meeting have lirst been read and confirmed or corrected as may
be necessary.


17. And we do further require and enjoin you twice in each year to
transmit to us through one of our principal Seeretaries of State, a fuI!
and exact eopy of the minutes of the said Legislative Council for the
last preceding half-year, with an index to the subjects contained therein.


\ 18. And it is OUl' further pleasure that you do not propose or a~sent
to any ordinance whatever respecting the constitution, proceedings,
numbers, or mode of appointing or electing any of the membel's of the
said Legislative Council or otherwise, in relation lo any of the matters
mentioned or refel'red to in "your said <;ommission and in these our in-
structions, which shall he in anywise repugnant lo or ineonsistent with
such commission or instructions, 01' repugnant to any Act of Parlia-
ment, or 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 su eh ordi-
nance or pretended ordinances shall be absolutely nu1l and void to all
intents and purposes.


19. And you are expressly enjoined not to propose or assent to any
9rdiliaDce whatever wheteby any person may be impeded or hindered




5'14 CEYLON-SUPPLEMENTARY COMMISSION.
fr~m celebrating or uttending the worship of Almighty God in a peace-
able and orderly manner, although such worship may not be condueted
according to the rites and ceremonies of the Chureh of England.


20. And we do further enjoin you not to propose al' assent to any
ordinance whatever whereby any new rate or duty may be imposed or
levied, or our revenue might be lessened or impaired, or whereby OUT
prerogative might be diminished or in any respect infringed, or where-
by any increase or diminution might be made in number, allowance, or
salary of any public officers which have or shall have reeeived our
sanction, without our speeialleave or command therein first received.


21. And we do fnrther direet, that you do not propose or assent to
any ordinance whatever whereby bilis of credit or debentures, or other
negociable seeurities of whatevel' nature, may be issued in lieu of money
on the credit ofthe said island, or whereby any goverument paper cur-
rency may be established therein, or whereby any such bilis, or any
other paper currency, or any ca in, save only the legal coin óf the realm,
may be made or declared to be a legal tender, without special permis-
sion from us in that behalf first obtained.


22. And we do fnrlher enjoin and command you nol to propose or
assent to any ordinance whatever by which persons, not being European
by birth or deseent, might be subjeeted or made liable to any disabilities
or restrictions to which 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 propase or assent
to any ordinances whatever for raising money by the_ institution of any
public or private lotteries.


24. And it is our will and pleasure that you do nol propose or assent
to any ordinance whatever for the natnralization of aliens, or fol' the
divorce of persons joined together in holy matrimony, or for establishing
a title in any person to lands 01' other immovpable property acqnired by
any alien befare his or her naturalization.


25. And we do further direet that you do not propase or assent to
any ordinance whatever by which any tax al' 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 olher traders or per-
sons car;ying on the like business would be exempt.


26. And we do further direct that you do not propose or assent to
any ordinance whatever whereby any grant of money or other donation
or gratuity may be made by lhe said Legislative Council to you, ol' to
any member of the said Counei!.


27. And we do further arder and direel 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 rigbts




CEYLON-SUPPLEMENTARY COMMISSION. 575
of us, our heirs, and successors, and of all bodies politic and corporate,
and of an other persons, excepting those at whose instance 01' fOf whose
especial benefit such ordinance may be passed, and those claiming
by, from, through, and under them.


28. Ana it is our will and pleasure that you do not propose or assent
to any ordinance whatl:',ver to which our assent has once been refused,
without express leave for that purpose first obtained from uso


29. And for the sake of orderly despatch, and the prevention of al!
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,
lo frame and propose to the said Council for their arloption, 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 Of benefit private persons, that due
notice may be given to aH parties concemed of the provisions thereof,
with ampIe opportunity for opposing the same, and that a full and ¡m-
partial examination may take place of the grounds upon which the same
may be proposed or resisted; and we do authorize you from time to
time, with the consent of the said Council, to revoke, alter, or renew
such rules, orders, and forms as there may be occasion; and we do direct
that the same, when adopted by them, shall be duly observed in all their
proceedings.


30. And it is our further will and pleasure, tllat a1l laws to be en-
acted by the said Legislaüve Council shall henceforth be slyled "Ordi-
nances enacted by the Governor of Ceylon, with the ad vice and consent
of the Legislative Council thereof ;" and that no other style or forro
shall ever henceforth be observed in any sueh enactments, and that aH
such ordinances be drawn in a simple and compendious form, avoiding
prolixity and tautoIogy.


31. And we do further direct, that whtm any ordinance shall have
been passed by you, with the advice of the said Legislative Couneil, the


;. same shall be forthwilh laid before you for our final assent, disallow-
ance, or other direction thereupon, to be signified through you, for
which purpose we do hereby require you with all convenient speed to
lransmit to us, through one of Out principal Secretaries of Sta te, 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-
tu re ; and we do direct that every Buch transcript 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
inhabitants of lhe said island, excepting onIy 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 productive of serious injury or inconvenience, in
which several cases we do hereby authorize you, with the advice of' the
said Legislative Councíl, to determine the time at which any such ordi-
nance shall take elrect and have its operation within the said island;
which proceeding, with the reasons thereof, you 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 finally 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 01'
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 shall be deemed
to be disallowed, and sha11 thenceforth cease to have any force 01' elrect
within our said island.


32. And we do require and enjoin you to transmit to the Chief
Judge ofthe Supreme Court of Judicature of the said island, to be en-
roUed 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-
tificatC' under your hand and seal of the elrect of every order which you
may receive from us for confirming or disallowing in the whole 01' in
part, o\" fOI" amending the provisions of any such ordinance, which cer-
tificates shall in like manner be enrolled in tbe said court, and there
remain on record, to the intent that the judges of the said court may, .
without further 01' other proof, take cognizance of a11 ordinances to be
made and promulgated fOI" the 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 shall not have any right or
authority to prevent 01' deJay the enrolment of any such ordinance, and
that the validity thert:of doth not and shall not depend upon such en-
rolment.


33. And we do further declare our pleasure to be, that in the month
of J anuary, 01' at the earliest practicable period at the commencement
of each yea!', you do cause a complete collection to be publi~hed for




CEYLON-SUPPLEMENTARY COMMISSION. 577
general information of all ordinances enrolled d uring the preceding
year. And we do, particularly require and direct that transcripts of all
minutes and proceedings of the said Legislative Council be regularly
transmitted every six months without fail, for our information, through
one oC our principal Secretaries of State.


34. And we do further direct, that an ordinances to be made by you,
with the advice of the said Legislative Council, be distinguished by
titles, and that the ordinances of each year be' also distingui~ by nu-
merical mal'ks, commencing on each successive year with number one,
and proceeding in arithmetical progression to (he number éQrrespond-
ing with the total number of ordinances enacted during the year; and
that every sl1ch ordinance be divided into successive clauses or para-
graphs, distinguished in Iike manner by numerical marks, and that to
every sl1ch clause be annexed in the margin a short summary of its
contents; and you are t'o 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 introduced into any such ordinance which
may be foreign to its professed scope and object; and that no perpetual
clause be part of any tempomry ordinance; and that no law or ordí-
nance be suspended, altered, continued, revised, or repealed by general
words, but that the title and date of evel'y such law or ordinance be
partíeularly mentioned and expressed in the ol'dinanee suspending,
altering, continuing, revising, or repealing the same.


35. And we do direet that no law shaU by you be proposed to the
said Legislative Couneil Ol' enaeted by them, unless the draft of the
same sha11 first have been published in the Gazette of our said island,or
otherwise made pub!iely 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 our pleasure to be, that there shou!d be within our said
island a Council, to be called the Exeeutive Couneil thereof, and to be
constituted in such manner as we should by these our instructions direet :
Now we dodireet and declare that ¡he said Executive Council shall
eonsist of the severa! persons following; that is to say, ¡he senior officer
in eommand 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 (he time being; the Colonial
Treasurer for the time being; and the Government Agent for the Cen-
tral Provinee for the time being.


37. And we do hereby diree! and require, that in the exeeution of
the powers and authorities eornrnitted to you by your snid eommis-
sion, you do in al! cases eonsult with the said Exeeutive Couneil,
exeepting ouly when the matters to be decided shall be too unimportant


p p




578 CEYLON-SUPPLEMENTARY COMMISSION.
to require their advice, or 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 earUest practicable period communieate to
the said Executive Council the measures which you may so have adopted
witb the reason~ thereof.


38. Ang \Ve do authorize and require the said members of the said
Executive;Council to meet in obedience to any summonses which shall
by you for tnat 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 at.the least be always
present on any such occasion, and that disijnct minutes be kept oftheir
deliberations and proeeedings, which minutes it shal! be the duty of the
said Colonial Seeretary, or his assistant, to keep. And we do require
you to transmit to us, twice at least in eaeh 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 case appear right so to do, to act in the exercise of the power com-
mitted to you by your said commission, in opposition to the advice
which may in any such case be given to you by the members ofyour
said Executive Couneil; provided nevertheless that, in any such case,
you do fully report to US, by the first convenient opportunity, every
such proeeeding with the grounds and reasons thereof.


4Ó. And whereas we have by our said commission given to you full
power and authority in our name and in our behalf, but subject never-
theless to such provisions as are in this respeet 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, or for the public uses of our sub-
jeets there resident: Now we do hereby require and authorize you,
'from time to time as oceasion may require, to cause all necessary
surveys to be made of the vacant or waste lands to us belonging in our
said island, and to cause the persons making sueh surveys to report to
you what particular lands it may be proper to reserve for public roads,
or other internal communications by land or water, Ol as the sites of
towns, villages, churches, sehool-houses, or parsonage-houses, or as
places for the burial of the dead, or as places for the future extension of
any existing towns or villages, or as places fit to be set apart for the
recreation or amusement of the inhabitants of any town or village,
or for promoting the health of sueh inhabitants, Ol as the sites of
quays or landing places or towing-paths, whieh it may at any future
time be expedient to crect, forro., or establish on the sea-eoast, or in the




CEYLON-SUPPLEMENTARY COMMISSION. 579
neighbourhood of navigable streams, or as places which it may" be de-
sirable to reserve for any other purpose of public convenience, utility,
hea1th, or enjoyment; and you are speeially to requirc persons making
sueh surveys to specify in their reports, and to distingnish in the eharts
or maps to be thereunto annexed, sueh tracts, picees, or parcels of land
within our said island as may appear to them best adapted to answer
and promote tbe several purposes before mentioned. And it is our
will, and we do strict1y enjoin and require you, that you do not on any
pretence whatsoever grant, convey, or demise to any person or persons
any of tbe lands which may be so speciued as ut tp be reserved as
aforesaid, nor permit or suffer any sneh lands to be oceupied by any
prívate person for any prívate pmpose.


41. And we do further charge and reqllire yon not to rnake any grant
of land to or in trust for or for the use of any prívate persol1, ,by any
one instrument, or by successive instruments, exceeding 100 acres in
the whole, withollt om special permission for that purpose urst ob-
tained.


42. And whereas in and by your said cornmission we ha ve granted
unto you power and authority, in om name and in om behalf, to grant
to any person convicted of any crime in any of Ihe tribunals in our said
island an absolute or conditional pardon: Now we do enjoin and
require you, in every case where you shaU be applied to for any such
pardon, and in every case whatever in which sentence of death shaU
have been passed, to obtain from the judge who presided at the trial of
any such offender, a report in writing of the proceedings upón any such
trial, and of tbe evidence then adduced, and of the opinion of such
judge whether the conviction 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 sentence. And we do strictly
command that you do not upon any occasion permit any such kind of
punishment to be inflícted as can in no case be inflicted by the law of
England, and "that you do not rémit any fine or forfeiture above the
value of SOl. sterling, without previously signifying to us tie nature oí
the offence committed and the amount of the proposed"remission, and
receiving OUl directions thereupon; but in" the meanwhile it shall
be lawful for you to suspend the payment of such fine or forfeiture.


43. It being our intention that aH persons inhabiting out island under
your government should have fuIl liberty of conscience, and the free
exercise of aH such modes of religious worship as are not prohibited by
law, we do hereby require you to permit aH persons within our said
island to have such liberty, and to exercise such modes of religious
worship as are not prohibited by law, provided they be contented with
a quíet and peaceable enjoyment of the same, not giving offence or
scaodal to the government.


pp2




580 CEYLON-SUPPLEMENTARY COMMISSION.
44. It is our further will and pleasure Ihat 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
ofreligion. You are not however to propose or assent lo 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 ap-
prova!.


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 island, any person exercising tbe same under
and by virlue of any commission or warrant granted or to be granted by
us, in our name or under our authority, and we have by the said com-
mission strictly required and enjoined you, in proceeding to any such
suspeusion, to observe Ihe directions in Ihat behalf gi ven 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 stalement in writing
to the person so to be suspended, Ihe grounds of such your intended
proceeding against him, and that you do call upon any 8uch person lo
communicate to you in writing a statement of the grounds upon whieh
and the evidence by which he may be desirous to exculpate hirnself, and
that you transmit hoth of the said statements lo us, through one of our
principal Secretaries of State, by the earliest conveyance.


46. And we do hereby direct and inslruct you, that all cornmissions
aud appointrnents lo be granted by you to any person or persons for
exercising any office or ernployment in or concerning the said island
be granted during pleasure only, and ¡bat whenever you shall appoint
to any vacant office or employrnent any person not by us especially
directed to be appointed thereto, you shall at the same time expressly
apprize such person that such appointrnent is to be considered only as
ternporal'y and provisional, until our allowance or 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 tbe said island without
having first obtained leave from us for so doing under our sign manual
and signet, or through one of our principal Secretaries of State.


-


[The following account of the introduction of the jury
system Ín Ceylon was intended to be inscrted in the ac-
count of the laws and of tite 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 even~ of the greatest possible importance to
the colony, and reflects the highest honom on the right
honourable amI. 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 especially since the most
wise and most poli tic measure thus adopted with the hap-
piest effect in CeyIon has been since advantageously imi-
tated with respect to our East Indian possessions.] .


From the yeal' 1802, the period at which the :6rst 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 Comt 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 tiJe representation of Sir Alexander
Johnston, that the two European Judges of the Supt'eme
Comt 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
a11 cases in which any native prisoners were concerned. In
November, 1811, accordingly, a new royal Charter of
Justice, under the great seal of England, was published
in Ceylon, by which, amongsi othel' things, it was in sub-
stance enacted tbat every native of the island, of what-
evel' caste ol' 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 an such cases,
8hou1d extend, 8ubject 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, pl'ovided 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 or sheriff of the provine e, as soon as a criminal




582 CEYLON.
sessions is fixed for his province, summons a considerable
number of jUl'ymen of each caste, taking particular care
that no juryman is summoned out of his turn, or so as to
interfere with any agricultural or maq.ufacturing 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 tbe 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 arruigned; every prisoner has a right to be tried
by thil'teen 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--tiscal, who, in Ceylon, holds an office very
nearly similar to tllat held in Scotland by the LOl'd-Advo-
cate, or unless the prisoner himself, from believing people
of his own caste to be prejudiced against him, shouldapply
to be tried eithel' by thil'teen jUl'ymen 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 the urn, the prisoner having a right to objcét to five
peremptorily and to any number for cause, until he has
dl'awn the names of thirteen jurymen who have not been
objected to; thesc thil'teen jurymen are then sworn, ac-
cording to the form of their respective religions, to decide
upon the case according to the evidence and without par-
tiality. The advocate-fiscal then opens the case for the
prosecution (thl'ough an interpreter if necessal'Y) to the
judge, and proceeds to call an the witnesses fol' the pro-
secution, whose evidence is taken down (through an in-
terpretel' if necessary) in the hearing of the jury, by the
judge, the jury having a right to examine and the prisoner
to cl'oss-examine any of the aboye witnesses. When the
case fol' .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 pl'osecutor to
cross-examine them, their evidence being taken down by
the judge; the prosecutol' is seldom 01' ever, except in
very particular cases, allowed to reply 01' call any wit-
nesses in re pI y . "




( 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 climate is vel'y great upon
the coast, but the higher parts of the island are more
temperate. The soíl produces in great luxuriance every
kind of tropical vegetable. Sugar, coffee, spices, aml
ebony are the principal exports; rice, salt provisions, and
manufactured articles, the chief impol'ts. The population,
nciw 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 enclcised
by loftyand rugged declivities. It was formerIy built for
the most part of wood, but the greater portion having
been accidentally destroyed by firc in 1816, it has since
be en rebuilt in a better manner.


HISTORY AND CONSTITUTION.


The island was discovered by the Portuguese, undel'
one of the family of Mascal'enhas, 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 fonned 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 isIand of Bourbon, took pos-
session of the Maul'itius 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 colon)', 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 easilyenter,
could not readily quit the old port chosen by the Dutch;
and tbe 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 undel' General Abercrombie, and was
ceded to Great Britain nt the peace of 18B. It is now
put upon the footing of OUl' other sugar colonies.-Ber-
nardin du St. 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 colonies,
by Orders in Council, and the exeeutive government is
intrusted in tbem to a Governor and Council. The Go-
vernor receives a salary of ~8000 ayear. The President
and Members of the Council receive no saIary 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 i6 ~lOOO ayear. The Chief Judge, who is also Com-
missary of Justice amI Judge of Viee-Admiralty, receives
a salary of ~3500 ayear. The Attorney-GeneraJ, who was
also standing English Counsel,reeeived about .t'850 ayear;
and as a Jlldge of the Court of Appeal the further sum
of 1'560. The Vice-President of the Court of Appeal
received .t'840 ayear, and foul' Judges of the Court
~560 each. The President of the Court of First Instance
received a salary of 1:700 a year, amI bis 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 f60. The Proeureur-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 receivecl ~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. 'fhe 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 .i.'600 ayear, and the Chief Justice of Peace 1'240
ayear. The two Assistant Justices had no salal'Y, but
l'eceived fees amounting to about .1:40 ayear each.-:-
4th Rep. Como of Enquiry Col. Rev. aneI Expen. (Mauri-
tius,) House of Commons Papcl's, 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 al'ticle of the capitulation it was stipulated,


tbat property of tbe inbabitants should be rospected;
and by the 8th, that tho inhabitants should preserve theil'
religion, their laws and customs.


Bya pl'oclamation dated on the 5th Decembel', 1810,
it was declared that the rules hithel'to observed for the
administration of civil justice and of police should be
presel'ved, and tbat the laws and usages in force up to
that day should also be continued.


The inhabitants were pl'omised all the advantages of
commerce enjoyed by othe1's ol' His Majesty's subjects.
As to the administration of the different b1'anches of go-
vernment, it was declared that a new proclamation wouId
announce the method in which it should be carried on.


The p1'oclamation, dated on the 28th Decembel', 1810,
(afterwards confirmed in substance by another of the date
of January, 1814,) was accordingly published. By the
1st article of that pl"Oclamation, aH the ecclesiastical esta-
blishments and the religious functionaries were continued
under the same laws as heretofore.


By the 2d article, aH the establishments, as well judi-
cial as those of police, were to be preserved and con-
tinued durante bene placito under the English govern-
ment, upon the same footing and subject to the same


(1) See ante, 3 to 16, on tbe general topic, now far tbe colonies are subject
to tbe law of the motber country.




586 MAURITIUS.
regulations as those which existed at the time of the capi-
tulation, undero the followiog modificatioos :-that aU
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 Qf appeal to the Governor of the
islands, who, after having transmitted them to the Judicial
Assessor and Magistrate of the colooy for his advice and
opioion thereon, should give his own decision. An appeal
was to be allowed tó 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
comts 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. The Tri-
bunal Terrier was directed to be composed of the Cap-
tain-General, Prefect, the Commissary of Justice, or of
four members of the Tribunal of Appeal, who should be
chosen by the Captajn-General. By a sub~equent ordi-
nance it was declared, that the tribuoals of this colooy
should be composed of thc Tribunal of Appeal and the
Civil Tribunal. The Tribunal of Appeal was to consist
of a president, a vice-president, three judges, four super-
numeraries, a commissary of the government, a substitute,
exercising in case of need the functions of the commissary,
and a secretary.


The Civil Tribunal was to consist of one judge, of one
substitute, of a commissary of the government, °and a se-
cretary.


The Civil Tribunal was to have cognizance over all
affairs civil and criminal, matters of commerce, admiralty.
and police.


The Tribunal of Appeal was to decide in the last resort


(2) The sum is now settled by the charter at DOOO sterling.
(3) See ante, 23.




MAURITIUS. 587
upon aIl judgments in the Court of First Instanee in the
folIowing manner:-ln 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 Captitin-
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 nn
officer was accordingly appointed, and charged with the
keeping .of the registers of births, marriages and dcaths.
He was to be appointed by the Captain-General, upon
the recommendation of the Colonial Pl'efect anu- 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 Couneil.


Codes cif Laws.
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 neccssary. changes required by the
colonYl wasdeclared to be in force upon the 21st April,
1808. 'l'he Code de Commerce (with a few alterations)
was promuIgated 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 aH the population, free or
slaves, on the 6th November, 1816. lt was provided,
however, that this should not affect the regulation of
slaves by the provisions of the Code Noir.


The Colonia;l Asscmbly, upon the 1st of August, 1793,
promulgated acode upon municipal and correctional po-
liceo .


The code of Civil Procedure was adopted from France
on the 20th July, 1808, with a few alterations rendered
necessary by the circum~tances 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 cont1'ibute its assistance to the expense of providing
for its own safety, aml in order to 1'aise the revenues neces-
sary for this purpose a couneil was created, eonsisting of
eleven persons, to be chosen from among the principal in-
habitants and traders of the different parts of the ¡sland,
three from tbe Port Napoleon, and one from each of the
other districts. The members of the Council were to be
llamed by the Captaín-General, on the presentation of the
Colonial Prefect and the Commissary of J ustiee, f1'om
a list of nine candidates eIected for the distl'ict 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 fo1'med
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 Justiee.


Council of the Commune.
By a pl'oclamation of Governor Farquhar, dated on the


8th September, 1817, it was ordered, that there should
be formed in the town of Port Louis a Couneil of the
Commune composed for tbe town of twelve notable inba-
bitants, and for eaeh other quarter of the Ísland of three
proprietary inhabitants. AH these inhabitants were to be
at least 30 years of age, unIess tbey were boro in the ea-
lany, when they might be appointed at 27 years of age.
They must have resided 10 years in the calony, and be
possessed of an annual income of 5000 piastres in tbe
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 offiee
fol' 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 pl'esident, 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-
cation, and roads and canals, aneI manufactures and agri-
culture, and reporting thereon to the Governor. 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
pel'sonal 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 EarI of Bathurst, clated on the
31st August, 1820, the Governor was clirectecl, as appears
by his proclamation of the 29th January, 1821, to sup-
press these councHs of the commune, and they were sup-
pressed accordingly.


P owers oj' tite Governor.
By a proclamation clatecl on the 22d of Janual'y, 1814,


Governor Fal'quhar declarcd 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 COll-
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 legally published in
the tribunals 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 aH the violators of the laws of His Majesty's
empíre, and had cleclared that such official pl'omulgatíon


-by the governm~nt díd not affect the isle of Bourbon, sínce
each island had its separate tribunals; it had therefore
desired the accused to be acquítted. The proclamation
went on to state, that the Procul'eur-General had ap-
peaIed from thís 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 his Excellency considered that the magis-
trates who had conn.rmed the before-mentioned judgment
had violated their functions in a serious and most culpable.




590 MAURITIUS.
manne1', 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 justly proscribed
traille 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 Rís Britannic Majesty, and that his
Excellency knew how to maintain these laws, and to
make them respected; and for this double purpose he
ordained, 61'st, that aH the judges of the tribunaIs of the
isIe of Hourbon who had given and con6rmed the judg-
ment aforesaid, should be suspended from their functions
until it pleased Ris Royal Righness the Prince Regent to
make such orders as he might think 6t upon the report
which wotMI. be forwarded to hOO by his Excellency
the Governorj and secondly, that those members of the
two tribunals who had acted in this aff'air, should not be
capable of beillg appointed to any publie employment
until the pIe asure of His ·Royal Highness should be
known.(4.)


Court Jor the Trial of Piracies.
This court was established by an instruction issued to


Governor Farquhar, dated Februal'Y 1, 1814. The in-
struction recited the act of the 46 Geo. 3, intituIed, "An
Act fol' the Summary Adjudication of Crimes committed
in distant Countries and upon the Sea," and also an aet of
the ~8th Hen. 8, intituIed "An Aet conccrning Piraeies,"
and then appointed, as cornmissioners for the purpose of
carrying into eff'eet these two acts, three persons, of
whom the Governor fol' the time being, the Judge of the
Court of Viee-Admiralty, 01' his :deputy Iegally appointed,
the Chief Justice and Commissary of Justiee, 01' ·the
Secretary of the colony, should always be one, and who
were to examine, withgOO"d and 10yal men of the isle of
France, in such manner as they thought 6t, into the coro-
mission of a11 such crimes.


(4) A statement reacbed tbis coun-
try just as tbis. sheet was going to
press, that some of the judges of the
colony had been suspended from tlle
exercise of their functions, on the
ground that they were the holders of
slaves, contrary to the terms of the
Order in Conncil. As that order


merely declares tbat the persons there-
in specified shall not be the holdel'S of
slaves, but does not provide for its
own enforcement, this sus,Pension of
the functions of the offendlOg judges
must have taken place under the an-
thority vested in the Governor by his
commissioD or instl"uctions.




MAURITIUS. 591


CUt'ator 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 made by a subsequent de-
eree 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 decrecs of the 18th July and the 16th Sep ...
tember, 1809, when vacant possessions became subject to
the Code N apoleon.


Bya proclamation dated on the 4th January, 1811, the
office of Curator of Vacant Possessions was intrusted to
Mr. Shaw, then the Judicial Assessor. By another pro-
clamation dated on the 16th January, 1812, the forma-
lities applicable to Frenchmen were equally extended to
the succession of Englishmen or foreigners .who should
die on the island intestate. The funds arising from such
successions were directed to be paid into the public trea-
sury, to be at the disposal of the government,


Burials.
The au thority to bury a corpse must be given by the


civil commissary~ upon a declaration oí the death made
by two witnesses, the nearest relatives, or neighbours of
the deceased.


Prosecution qf Crimes and Oifences.
Bya decree of the 25th of Messidor, in the year 12,


tbe Commissary of Government in the Tribunal of First
Instance, in each of the islands, was charged with the pro-
secution of an offences in the saíd islands.


Divorce.
The French law of divorce has been adopted In tbe


Mamitius.
Registration of Deeds.


Almost an civil aets must be registered, such as wills
and deeds, both of whieh 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 doublc fees fol' re-
gistl'ation.


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 judgc, before the judgment, unless he
gave sueh seeurity as the judge might think suffieient.


lHortgages.


These are of course expressly governed by the Code
Napoleon, but after the promulgation of that code in the
island of Mauritius, a question was raised whether it was
neeessary to renew the registration of these mortgages at
the expiration of every ten years. This question was sub-
mitted to the French government, ancl by a decree of the
Couneil of State, dated on the 15th of Deeember, 1807,
and confirmed by the Emperor on the 22d January, 1808,
it was decided that renewed registration was neeessary,
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 renewecl before the expira-
tion ofthat term."


THE SEYCHELLES.


By an ordinance dated 23d September, 1806, a tribunal
for the maintenance of the public peace was established fol'
the islands of the Seychelles. This tribunal was to be
composed of one judge and a secretary, (4) amI 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 ancl without


(4) See this court IlOW provided fOf by (he recent Order in Council.




MAURITIUS. 593
appeal on all causes purcly personal ana affecting personal
property to the value of ZOO francs 01' 40 piastres, and
subject to appeal to the amount of 600 francs 01' 125
piastres. In the latter case his judgments migbt be exe-
cuted on the party giving security for restitution. He
might decide alone, and without appeal, to the amount of
ZOO francs, and subject to appeal to any amount whatever
in the following cases :-Complaints of injury done by
animals to fields, trees, 01' harvests. Complaints of tres-
pass es upon property. Tenants' repairs to houses held
by them. Indemnity claimed by tenants for interruption
of enjoyment when the right to indemnity was not con~
tested. The payment of the wages of workmen, and the
performance of engagements relating thereto. Actions for
verbal insults and breaches of the peace, at least when the
pal'ties are not tried criminally for the same.


Byan ordinance dated 12th March, 1810, sworn va-
Iuers were to be appointed in the case of the sale of im-
movable property by order of the court.


A proclamation issued by Governor Farquhar, on the
18th of March, 1812, confirmed these two ordinances ;
another dated on the 3d September, 1817, recited them,
and directed that the Justice ofthe Peace appointed under
these ordinances, 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, rOl' the approba-
tion of the government, a project for a Council of the
Commune at the Seychelles, such 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 Forests.
A special tribunal to protect the rights of the crown in


these· matters was continued by proclamation of the 1st
February, 1813, according to the form in which it had
becn 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 Council.


WHEREAS it is necessary to make provision for the better admillistration
of justice in His Majesty's island of Mauritius and Íts dependencies,
His Majesty doth therefore, by and with the advice of his Privy Coun-
cíl, order, and it is hereby ordered, that His Majesty's Supreme Court
ofCivil and Criminal Justice within the said colony, called the Cour
d'Appel, shali henceforth be holden by and before thr~e judges only, and
no more; and that the chief or senior judge of the said court shall hence-
forth bear the title of Chief Judge and First Presidellt; and that the
second of the said judges shall henceforth be called and bear the tille of
Vice-President; and that the third of the said judges shall henceforth be
called and bear the title of Assistant-J lldge of the said COllrt: And it ís
further ordered, that His Majesty's court in the said island, called the
Tribunal de Premie re Instance, shall henceforth be holden by and
Defore, 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
cQ\lrts should, by reason of any such la wful recU'Sation as hereinafter
mentioned, or by sickness, absence, suspensíon, resignation,· 01' any
Qther cause, be unable to perform the duties of such his office, it shall
be Iawful 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 pleasllre shall he known:
And it i8 hereby further ordered, that if in any criminal case the law
which is now or hereafter shall he 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 numher of judges so required
by law; but an appointments which may bc so made shall endure so
long only as may be necessary to provide for any such emergency, and
shall be renewecl from time time as occasion may require: And
whereas on the 17th day of February, 1830, the Governor of the said
¡sland of Mauritius, with the advice of the Council of Government
thereof, made an ordinance, bearing date on the day and year Jast afore-




MAURITIUS-CHARTER OF JUSTICE. 595
said, intituled "An Ordinance for the establishing of a Court composed
of his Excellency, to judge certain prises á partie et recusations,"
direc!ed against the Court of Appeal " in this colony:" Now, it is
furjher ordered tbat the said ordinance shall be, and the same is hereby
confirmed and al!owed, 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 mannel' provided by the said
ordinance, and not otherwise: And it is hereby fmther ordered, that
all and every the powers, authorities, and jurisdictions heretofore vested
in the judges ofthe said tribunals respectively, or in a majority ofthem,
shall continue and be vested in the judges hereinbefore mentioned or in
the majority of them: Provided nevertheless, and it is further ordered,
that in al! cases in which the Court of Vice-Admiralty of the said
colony hath jurisdiction, whether by virtue of any Act of Parliament or
by virtue of the commission of the judge of tbe said court, 8uch juris-
diction shall be exclusive, and that it shall not be competent for the
said Cour d'Appel or for tbe said Tribunal de Premiere Instance to
hear, decide, or take cognizance of any such case; and tbat if, in any
suit or action or other proceeding depending in the said Cour d' Appel
or in the said Tribunal de Premiere Instance, it shall be made to appear
tbat the question arising in any such action, suit, or proceeding is within
the jurisdiction or competency of the said Court of Vice-Admiralty,
then and in every sucb case tbe said Tribunal de Premiere Instance 01'
the sajd Cour d'Appel, as the case may be, shall declare itself i.tÍcompe-
tent: And jt is furtber ordered that the oflice of Grand Juge, Gomrnis-
saire de Justice of tbe said island of Mauritius, is and shall be abolished :
And it is further ordered, that in all civil cases depending oefore the
said Cour d'Appel or the said Tribunal de Premiere Instance, the
Procureur-General of the said island, or his substitutes, are and shall be
relieved from the duty heretofore incumbent on them of making their
conclusions for tbe assistance of the said tribunals: And it is further
erdered that no Judge of the said Cour d' Appel, nor the Judge of the
sajd Tribunal de Premiere Instance, nor the suppléant of the I\aid
tribunal, nor the Procureur-General of the said island, nor the Advo-
cate-General thereof, nor the Judge oftbe Court ofVice-Admiralty, nor
any surrogate of such judge, shall be tbe owner of any slave, nor be the
proprietor of or have any share or interest in any land cultivated by the
labour of slaves, eitber directly or by any person or persons as a
trustee or trustees for him; and each of the said several oflicers is
hereby declared incompetent to be ojo act as the manager, overseer,
agent, or attorney of, for, or upon any plantation or estate within the
said island or its dependencies; Provided nevertbeless, that nothing
herein contained shall prevent any such officer as aforesaid fromhir'ing


QQ2




ú96 MAURITIUS-CHARTER OF JUSTICE.
Cor and employing in the domestic service of himself, or any members
of his tamily, any number of slaves, if it shal! 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 thele 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, fOI the decision
of aH civil causes of small amount arising within the said island, and
for the trial of aH crimes and offences of a low degree committed
therein, and that from the judgments, sentences, and ordeIs of lhe said
Petit Court, no appeal shaU lie to any other tribunal or judge in the
said island or elsewhere; and that there shaH also be in any one OI
more of the dependencies of the Mauritius, which the Governor of the
said island, with the advice of the councíl 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 tlle advice and consent ofthe council
of government of the said island, shall, by any ordinances to be from
time to time for that purpose made, define and limit the extent of the
jurisdiction, both civil and criminal, of any such Petit Court, and fix
and regulate lhe forms of proceeding, the rules of practice, and the
nature of the process to be observed therein respecti vely: And it is
hereby further ordered, that it shall and may be lawful for any person
or persons, being a party or parties to any civil suit or aetion 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 01' their Privy
Council, against any final judgment, sen ten ce, Ol' decree of tbe said
court, or against any rule or arder made in any such civil suít or action
llaving the effect of a final or deunitive sentence, and which appeals
sball be made subject to the rules, regulations, and limitations following;
that is to say, in case any such judgment, decree, order, or sentence
sball be given or pronounced for al in respect of any sum or matter at
issue aboye the amount or value of .flOOO sterling, or in case such
judgment, decree, arder, or sentence shall involve, directly or indirectly,
any claim, demand, or question to Ol' respecting property, or any civil
right, amounting to or of the value of .flOOO sterling, or in case the
same shall affect lhe right or alleged right of any person to freedom, the
person or persons feelíng aggrieved by any such judgment, decree,
arder, or sentence of the said Cour d'Appe!, may within fourteen days
next after the same shall have be en made, pl'onounced, or givcn, apply
\0 tlle saiel C(lur d'Aflpel by petition, for Icave to appeal therefrom to




MAU!lITIUS--CItARTER OF jusTlCE. 59'1
IIis l\1ajesty, his hcirs, amI successors, 01' his 01' Iheir Privy Council;
and in case sncb lcave lo appeal sball be prayed by Ihe parly 01' parties
who is 01' are directed to pay any sum ofmoney, 01' perfor01 any duty,
lhe said Cour d'Appel sball and is hereby empowered either to direct
that the judgment, decree, order, 01' sentence . appealed fro01 !hall be
carried into execution, 01' to direct that the execution thereof shall be
suspended pending lhe said appeal, as to the said court may in each
case appear the most consistent with real and substantial justiee; and
in case lhe said Cour d' A ppel shall direct such judgment, deeree,
order, 01' sentence to be carried into execution, lhe person or persons in
whose favour the sama sball be given shall before the execution thereof
enter into good and sufficient security, to be approved by lhe said court,
for the due performance of such judgment 01' order as His Majesty, his
heirs, and successors, shall think lit to make thereupon; 01' in case the
saiel Cour d'Appel shall direet the exeeution of any such judgment,
decree, order, 01' senlence to be suspended pending any such appea!,
the person or persons against whom the same shall have been given
shall in like manner, and before any order for the suspension of any
such execution is macle, entcr inlo goocl and sufficient security, to be
approveel by the said conrt, for the due performance of such-judgment
or order as Bis Majesty, bis heirs, and successors shall think fit to
make tbereupon: Anel it is further ordered, that in all cases security
shall al so be given by the party or parties appellant, lo tbe satisfaction
of the said court, for the prosecution of the appea), and for the pay-
ment of all such costs as may be awarded by Bis Majesty, his beirs,
and successors, to (he party 01' parties respondent; and if sucb last-
mentioned security shall be entered into ""ithin three montbs fro01 the
date of such pctition for leave to appeal, lben, and not otherwise, the said
Cour d'Appel shall allow the appeal, and the party or parties appellant
shall be at liberly to prefer and prosecute his, ber, or their appeal to
His Majesty, bis heirs, and successors, in bis or their Privy Council, in
such manner and uncler such rul!'s as are observed in appeals made to
His Majesty in Council from his plantations and colonies: Provided
nevertheless, and it is furthel' dec1ared and ordered, that nothing herein
contained shall extend or be construed to extend to take away, diminish,
or derogate from (he undouhted power and authority of His Majesty,
his heirs, und successors, in his or their Privy Counril, and upon the
humble petition at any time of any persoll or persons aggrieved by any
judgmellt 01' determination of the said Cour d'Appel, to admit, his, her,
or their appeal therefrom upon such other terms, and upon and subject
to such other limitations, restrictions, and regulations, as Bis Majesty,
bis heirs, and successors, shall in any such special case think 6t to
prescribe: And it is further ordered, that in all cases of appea) allowed




598 MAURITIUS-CHARTER OF JUSTICE.
by the said Cour d'Appel, or by His Majesty, his heirs, and successors,
the said court shall certify alld transmit to His Majesty, his heirs, and
successors, in his or their Pri vy Council, a true and exact copy of all
proceedings, judgments, decrees, and orders had or made, and of all
evidence received or given in such causes sO appealed, so far as thé
samehave relation to the matter oí appeal; such copies to be certified
Ilnder the seal of the saidcourt: And it is further ordered, that the said
Conr d' Appel shall in all cases of appea! to His Majesty, his heirs, and
successors, conform to and execute su eh judgments and orders as His
Maje~ty, his heirs, and successors shalI think fit to make therein, in such
and ihe same.manner as any judgment, decree, or order of the said
Cour d'Appel couId or might have been executed. And the Right Ho-
Mutable the Lord Viscount Goderich, one of His Majesty's principal
Secretaries of State, is to give the necessary directions herein accordingly.




( 599 )


THE AUSTRALIAN COLONIES.


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 geogl'apher, Malte Brun, who, in his division of
the globe, denominated these islands Austral-Asia, which
has sin ce, 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 wel'e, 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, 01' Tas-
mania. On the eastern coast of the former is the colony
known as New South Wales, and on the western coast is
the Swan River Settlement, commonly called Western
Australia. The settlements at Van Diemen's Land occupY
each of the four coasts of that island •


.. .. " The chapters upon the Aus.
tralian settlements were contributed
by my friend, Henry W. Parker, Esq.


of Gray's Inn, Barrister at Law,5;the
author of a work upon Van Diemen's
Land.-C.C.




( 600 )


NEW SOUTH W ALES.


-


trlIlS colony, whieh in the commissions appointing thc
Governors is calleel His Majesty's Territory of New
80uth WaJes, is situated on the eastern eoast. of New
Holland, An Order of Couneil dated the 6th Deeembel',
1786, amI the King's warrant, dated 3d April, 1787, for
letters-patent appointing a Vic~-Admiral and a Juclge of
the Vice-Admira1ty Comt fol' the new settlement, declare
its limits to extend "from the northern cape 01' extremity
of t11e coast called Cape York, in the latitude 10° 37'
80uth, to the South Cape, the southern extt'emity of the
coast in the latitude of 4.30 39' south, and ¡nland to the
westward as far as 135c east longitude, reckoning from
the meridian of Greenwich, including all t1le islands adja-
cent in the Pacine Ocean within the latitudes afo1'esaid."
At that period it was not known that Van Diemen's Land
was not part of the maiu island, as the channel separating
it was not diseovered until the"yea1' 1797. An Order in
Couneíl, dated J4.th June, 1825, declared Van Díemcn's
Land to be indepeudent of the colony at New South
'Vales, thereby limiting the southern bounclary of the co-
lony to the sho1'es of Bass's Straíts. Norfolk Island,(I) on
whieh a settlement was fo1'med by Lieut. King, shortly
after the eolony at Sydney Cove was established, is oue
of t11e islands within the limits (2) of the boundary marked
out in the orcler of counci!.


(1) This settlement was abandoned
some years sinee, bul in 1825 the
islsnd was again oecupied, and there
is now formed there an establishment
for. the reception of convicts of the
first class-malefaetors. whose crimes
de'note them to be hardened offenders.
-Parker's Van Diemen's Laud, p.
40.


(2) One of the judges of the Su-
preme Court, when the prisoners de-
tained in eustody on eharges of havo


ing eommitted offenecs within the
i.land amount to any considerable
number, proeeeds from Sydney, ae-
compauied by military or naval olt-
cers for a jury, and a counsel ap-
poinled by the Governor lo uefend the
prisoners, and hohls a court of oyer
and terminer al this island. This
course has been adopleu. as it was
found that convicts frequenlly com-
mitted offences merely for the sake of
going lo Sydney lo be tried.




NEW SOUTH WALES. 601
The located 01' settled 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 generality of
the land is not accounted fit for the plough, hut it pro-
duces herbage upon which sheep thrive, this and the fine
climate bas 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 Hollana is said to have been discovered by the
Spanish Navigator, Don Pedro Fernando de Quiros, in
1609, hut tbere is much reason to bclieve that the land
which he discovered was one of the small islands to the
north of New Holland. In 1616 it was visited by Theo-
doríc Hertoge, who called that part on which he landed
Eendraaght Land, and in 1618 Zeachen saw another
part of the coast, which he named Arnhe~rn Diemen.
Jan Van Edels in 1619 gave his own name to a portion of
the southern coast. In 1687, and again in 1699, Darnpier
surveyed the western shores of the island, and the Dutch
navigator Carpentar shortly aftúwards surveyed the gulf,
which he named Carpentaria; but from that time, until
Captain Cook in 1770 explored the eastern coast, Httlc 01'
nothing was known of this extensive country.


The description Captain Cook, on his return to Eng-
land, gave of Botany Bay, (so called from the nurnber of
new plants discovered on the 8hores by MI'. afterwards
Sir Joseph Bankes, and Dr. Solander,) 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, declared
and appointed the place to which convicts should be
tmnsported, to be the eastern coast of N ew South Wales,
01' sorne one 01' other of the islands adjacent within the
limits before described. The ships appointed to proceed


(3) These 19 districts or counties
are, Curoberland, Caroden, Sto Vin-
cent, Gloucester, Durham, Huntcr,
Cook, Westmoreland, Argyle, Mur-


ray, King. Georgiana, nathurst, Rox.
burgb, PbiJlip, Brisbane, Bligb, Mac-
quarie, and Wellington.




602 NEW SOUTH WALES.
to the eastern coast were His 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 settlement, 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 fol' 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 powel'
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 aneI determine cases of appeal from
the Civil Comt, 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,
al1d Vice-Admiral of the territory, with powers similar to
those usually given to persons appointed to like offices in
the British colonies in America: he was also invested


(4) Two years after the settlement
was formed several convicts staled,
that the respective periods for which
they had been sentenced had expired,
and it was then, and not till then,
discovered, that the papers necessary
to ascertain these important particu-
lars had been left in England. The
prisoners were therefore detained nntil
the documents were received.


(5) The extensive powers of par-
doniog given to the GovernoI by this


commission form an exception to the
general rule. In al! the other eolo-
nies the Governors are expressly pro-
hibited from granting pardons in cases
of murder ar treason; and they can
only respite criminals convicted oí
these offences till His ~Iajesty's plca-
sure shall be known. Probably this
exeeption was occasioned by the pe-
culiar circumstances nnder which thia
settlement was established.-C. C.




NEW SOUTH WALES. 603
with authority to hold general courts-martial, to confirm
or to set aside the sentence, and also to make orders 1'01'
the good government of the colony.


The first act of padiament relating to the colony is the
27 Geo.3, c. 2; it enacted, that "it shall be lawful for
His Majesty by his commission undel' the great seal to
authorize the Governor, or 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 an su eh 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 comt 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, hear,
determine, and punish an treasons, misprisions of treason,
murders, felonies, forgeries, perjuries, trespasses, and
other crimes or ofrences whatsoever that might be com-
mitted in the colony. The mode of proceeding was this :
-the charge against an ofrender was reduced into writing
and exhibited by the judge; witness·es were examined upon
oath, and according to the opinions of the majority of the
court the prisoner 01' defendant was adjudged to be guilty
or not guilty.(6) If guilty, and the offence was capital,
the court pronounced judgment of death in like manner
as if the prisoner had been convicted by the verdict of
a jury in England, 01' awarded su eh 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
ofrender, however, could be sentenced to suffer death
unless five members of the court concurred in finding him
guilty, 01' if five members díd not agree in the award,
until the Kíng's pleasure was signified thereupon.


(6) Mr. Judge-Advocate Wylde
used to retire with the members of
the court, after the evidence in each
case was concluded, to deliberate
upon the verdict in an adjoining room.
This practic~ was cOlltillued until


1820, when the J udge.Advocate, on
the suggestion of :Mr. Commissioner
Bigge, charged the members of tha
comt in the presence of the prisoner
and the public.-l\'lr. Como .6igge's
Rep. p.B.




604 NEW SOU1'H WALES.
A Vice-Admil'uIty Court for the trial of offcnces COll1-


mitted upon the high sea3 was a180 constituted. (7 )
The letters-patent dated 4th Februal'Y, lS14<, l'ecitecl


the part of the former patent of the 2d April, 1787, re-
lating to the institution and appointment of the criminal
courí, and made no change in its mode of pl'ocedul'e, its
powers, 01' in the extent of its jurisdiction. The criminal
laws continued to be administel'ed undel' 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 justíce,
dated 13th Octobel', ] 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-mentíoned act díd
not materially va!'y from the 4 Geo. 4, c. 96.


The authority llndel' which the first civil judicature of
the colony and its dependencies exel'ci~ed its functioIls, was
deríved solely from Bis Majesty's commissions amI Jet-
ters-patent, for no act of parliament(9) empowered Bis
Majesty to establish any fOl'm of civil judicature; and the
form marked out and established was as great a departure
from the laws and usages of England as that of the cri-
minal judicature.


The Civil Court, consisting of the Judge-Advocate and
two inhabitants of the settlement appointed by the Go-
vernor, heard and detel'mined in a summary way an pIe as
of lands, houses, debts, contracts, and aH personal pleas
whatsoevel'. The court was empowered to summon the
parties, to examine witne8ses on oath, and to issue execu-
tion under the hand of the judge-advocate.


A party, feeling aggrieved by a dccision of thi~ court,
was at liberty to appeal too the Governor, and from him,
where the debt 01' thing in demand exceeded the value of


(7) ColJins' (Judge-Advocate) ac-
count of the colony óf N ew South
Wales. Barrington, in his work upon
New South Wales, al so states, that
the Vice-Admiralty Court had the
power to try otrenders ; but l\Ir. \V ent-
worth, in the seeond edition uf his
work, puhlished in 1820, says, that
"the Comt of Viee-Admiralty con-
sists of the judge-advocate, and takes
cognizance of captures, salvages, and


such other matters of dispute respect-
ing propeety as arise on the high seas,
but it has no criminal jurisdiction.
1t is probable that when the court of
criminal judicature was instituted,
that the criminal business of (he Vice-
Admiralty Court was removed to it."


(8) See the Charter, post.
(9) The 27 Geo.3. C. 2, onlyau-


thorized His Majesty \0 estabhsh a,
couet of criminal judicature.




NEW SOUTII WALES • 605
.f300, to the King in Counci!. This court was also em-
powered to grant probates of wills and administrations of
the personal estates of intestates dying within the colony.


The civil and criminal judicatures were united undel'
the presidency of one pel'son holding the office of judge-
advocate until the year 1814, when an alteration was
effected by a new commission and lettel's-patent, dated
on the 4th .Febl'uary in that year. The change consisted
of a separation of the civil and criminal judicatmes, 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 Judge-Advocate.(l2) In this court ap-
peals were heard against decisions of the Supreme Comt,
and its jmlgments were final in a11 cases where the sum
sued .for did not exceed ~'3000, but where it exceeded
that amount, an appeal lay to the King in Councí!. The
Supreme Court was composed of a judge of the court,
and two magistrates appointed by precept fl'olll the Go-
vernor, and had jurisdiction in aH pleas where the
matter in dispute exceeded ;e50 stel'ling. The Gover-
nor's Court consisted of the Judge-Advocate and two in-
habitants appointed by precept from the Governor, and
took cognizance of aH pIeas lnot arising between party
and party at Van Diemen's Land,) (3) where the amount
sought to be recovered was under ,[50 sterling, and from
¡ts decision there was no appeal.


These courts regulated their decisions by the laws of
England, but the judge of the Supreme Comt endea-
voured to give effect to the local regulations (4) published
at different periods by the authority of the Governor of
thecolony when he found them to be conformable to the
spirit or to the provisions of the law of England, and to


(1) Mr. Comm. Bigge's Report,
p.2 •.


(2) 2d edito Wentworth, p. 341.
(3) The Lieut.-Govemor's Court in


Van Diernen's Land had a similar
jurisdiction in thal island. .


(4) Mr. CornmissiCJner Digge's Re-
port. lUr. Wentworth, in the second
edition of his work, denies this, and
says, "these courts take no notice


whatevcr oC the laws and regulations
which have been made at various
times by the local government. The
enforcement oC these is left entirely lo
the rnagistracy. who assemble weekly
in the different towns throughoul the
colony, and take cognizance of all in-
CIactions as wcll of the colonial as of
the criminal code."




606 NEW SOUTH W ALES.
be beneficial in theil' opel'ation, 01' even where he thought
that they were essential fol' the support of the system by
which the colony was govemed. (5)


The act 4 Geo.4, c. 96., followed by a chartel' of justice
framed in pursuance of its provisions, effected as great
a change in the mode of administering the civil as it did
in that of the 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 chal'ter actually necessal'Y'


CIVIL GOVERNMENT.


The Govemor of this colony is appointed to his office
by two letters-patellt, tbe first constituting bim Governor
of tbe tel'ritory of New South 'Vales, and the second,
Captain-General aneI Governor-in-cbief of Van Diemen's
Land. (6) The Govel'nol' is the· principal membel' of the
Executive Council, consisting, besides himself, of tlle
Lieutenant-Governor, tbe Colonial Secl'etal'Y, the Colonial
Treasurel', and the Archdeacon.


He presides and votes at tbe sittings of tbe Legislative
Council, and when th~ numbers on a division are equal.
he has the casting vote.


The Governol' is authorized to impose on importation
into tbe colony duties not exceeding lOs. a gallon upon
spirits, the produce and manufacture of the U nited King-
dom, 01' the produce of British West India colonies; not
exceeding 15s. upon all othel' spirits; not exceeding 4s.
per lb. upon tobacco, and not exceeding J: 15 per cent.


(5) The Governor issued proclama.
lions and orders upon any subject-
sometimes, but not always, the courls
requil'ed them to be obeyed. Gover-
nor J\Iacquarie did even more, for
upon ODe occasion, without issuing any
public order or proclamation, he di·
rected two constables to conceal them-
selves in a place where the inhabit-
ants of Sydnéy were accustomed to
walk, and to arrest those who tres-
passed on a particular spot. Three
freemen, three convicts, and two wo-
men were arrested, and immediately
taken to gaol; the next day the G o·
vernor, without scein?; or hearing


them in uefence, ordered 25 lashes to
be inflicted on each of the three free-
men and on one of the convicts, 30
lashes on the other two convicts, and
directed the women to be confined for
48 hours. This illegal act of the G o-
vernor created universal alarm amoog
the colonists.-See l\1r. Como Bigge's
Rep. p. 48.


(6) The warrants for appointiog
General Bourke, the present Governor,
to these oflices, are severally dated
30th l\1ay, 1831. He is the first Go-
vernor appointed 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 undel' his sign ma-
nual, to constitute and appoint a conncil of such persons
resident in the colony, not cxceeding fifteen nor 1ess than
ten, as His Majesty shall be pleased to nominate and ap-
point. In case of death, absence, removal, 01' l'esignation
of a member of the Council, the Governor may appoint
another to act in his stead until His Majesty's pleasure
be known. In concert with at least two-thirds of the
members of the Council on the list, (exclusive of the Go-
vernor 01' presiding member,) the Governor has the power
to make laws and ordinances for the peace, welfare, and
good government of thc colony, su eh laws and ordinances .
not being repugnant to the act 9 Geo. 4, c. 83, 01' to
any charter 01' lctters-patent, 01' order in council, 01' to
the laws of England, but consistent witll such laws so far
. as the circumstances of tlle colony will admito The 00-
vernor has the initiative of an laws and ordinances to
be submitted to discussion in the Council; and it is pro-
vided, that notíce of tlle general objects of every act
proposed to be brought into consideration, shall be sent
by tlle Governor to one 01' more of the newspapers fol'
insertion, eight clear days at least before a law shall be
passed, 01' in case there be no newspapers, sucll notice
shall be given by sorne other mode of public advertise-
ment j but in cases of emergency, 01' where actual danger
would arise from the delay of eight days, the notice may
be dispensed with. If a majority of tlle members dissent
from any bill, and enter tlle grúunds of their dissent in
tlle minutes of the Council, the bill cannot be passed into
a law. Any membel' of the Council may request the
Governor to introduce a bill for the consíderation of the
Council; and ir the Governor 8hall decline, he must lay
his reasons in wl'iting, 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.




60S 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
must be transmitted within seven days to the Supreme
Court to be enrolled, and after fourteen days from the
date of such enrolmEmt 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 EngIand; then the Governor must suspenel
such bill untiI it has been brought, togcther with the
l'cp1-esentation, uneler the review of the Council, and if
the Governor and Council upon review of such bill,
differ from the opinions of the judges, and still adhere to
the proposed law, a written notice of such l'esolution is to
be transmitted by the Governor to the judges, and such
law shall thenceforward take eftect and be binding until
His Majesty's pIe asure shall be known, notwithstanding
any repugnan ce 01' supposed repugnance to the 1aws 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, c. 114, and 3 Geo. 4,
c. 96, are to be applied to sueh purposes as the Governor
may appoint by any law 01' ordinance.(~)


The members of the Council are justices of thc peace
by vil'tue of their office, (3) and they take an oath faithfully
to advise and to assist the Governor.(4,)


COURTS.


Tlle Supreme Court.
The 4 Geo. 4, c. 96, empowered His Majesty, by his


letters-patent, to appoint the Supreme Court, and ac-
cordingly His Majesty issued letters-patent undel' the great
seal, bearing 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-
q uired lo state in writing fully and at
leng!h the grounds of their opinion,
and copies of their reasons are to be
transmitted to the Killg.


(2) 9 Geo. 4, c. 83, s. 27.


(::1) 9 Geo. 4, c. 83, s.30.
( 4) They were formerly sworn no!


lo reveal anything which should be-
come known to them in their capadty
of members, but since the last ad has
come into operation lhe oath has no!
been udministered.




NEW SOUTH WALES. 609
of which the Supreme Court still maintains its jurisdie-
tion. (5) 'fhe 9 Geo. 4, c. 83, eliel not make it neeessal'y
that a new Charter of Justiee should be;.,lssueel, as the
second seetion of that aet enaeted that uuril other letters-
patent were issueel, the Suprcme Comt "so instituted by
His Majesty's letters-patent undel' the gl'eat seaI, beal'ing
date the 13th day of Octobel', in the fourth yeal' of His
Majesty's reign (1823,) shall retain and exel'cise the juris-
diction anel power in such comt vested by His Majesty's
said lcttcl's-patent, so f.'lr as thc same may not be altered
by tbis aet, as fully and effeetually as if su eh eourt had
been instituted in virtue und pursuanec of this aet; ruld
the said letters-patent, and aH ol'ders, aets, matters, and
things made and done in pursuance of the powers amI
authorities vested in His Majesty in and by the saiel act
passed in the 4,th ye"r of the reign of his present Ma-
jesty, (Geo. 40th,) shall be of the same force amI effeet as
if the same had been issued, made, done, and performed
by virtue and in pursuance of this act."


'fhe Supreme Court is a Court of Record, amI has cog-
nizance of all pIeas, civil, criminal, 01' mixed, and jUl'isdic-
tion in aH cases whatsoever, as fully and amply to all
intents amI purposes in N ew South \Vales anel aH and
every the islanels and terl'itories whicQ. now are 01' hereafter
may be subjeet to 01' elependent upon the government
thereof, as His Majesty's Courts of King's Beneh, Com-:-
mon Pleas, and Exehequer at Westminster, 01' either of
them, lawfuIly have 01' hath in England. On the trial
of every issue of fact joineel between the parties' in any
aetion at law eognizable in the Supreme Court, where
the ~um 01' value of the matte1' in dispute exeeeds .t:500
sterling, and where the trial shall not be· by jury, the
judges cause the evidence to be taken clown in writing by
a clerk 01' offieer, and to be repeated in open eourt to the
witnesses giving the same, anel the evidenee so taken is
entered upon t.he proceeelings of the comt as matter of
record; and in every case of appeal to His Majesty in
Couneil copies of all the eloeuments and papers that are
produeeel and given in evidence, 01' l'ejeeted, are requireel


(5) Tite Registrar is tite responsi-
ble keep<,r of t he archives of the Su-
preme Conrt, having the custody of
wills, &c. He is the depositary of
the memorials of registry of all titles
of Jand snd securities upon land in


the colony, the only ofileer empowered
to receive sueh memorials upon oath I
moreover, the Registrar has soleeharge
of intestates' estatcs.-New South
Wales Magazine, Novemhcr 1, 1833,
p.194. -


RR




610 NEW SOUTH WALES.
to be duly authentÍcated by the clerk aml annexed to the
record as part thereof


The powe1's 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 PIeas,
and Exchequer, in England.


The Supreme Court is a Comt of Oyer and Terminer
and Gaol Delivery; it is also empowered to inquire of, hear,
and determine an treasons, piracies, felonies, 1'ohberies,
murders, conspiracies, and other offences, of what nature
01' kind soever, committed 01' that shall be committed upon
the sea, 01' in any haven, l'iver, creek, 01' place where the
admiral hath pOW01', authority, 01' jurisdiction, 01' commit-
ted 01' that shall be committed in tbe islands of New
ZeaJand, Otaheite, 01' any otber island, country, 01' place
situate in the lndian 01' Pacific Oceans, and not snhjeet to
His Majesty 01' to any European state. 01' powe1', hy tho
master 01' c1'ew of any British ship 01' vessel, 01' any of
them, or by any B1'itish suhject sailing in 01' belonging to,
01' that shall have sailed in or belonged to, amI have
quitted any British ship 01' vessel to livc in an)' part of the
said islands, countl'ies, 01' plaees, 01' tbat shall be tbere
living; and that an persons convieted of any of the offences
so to be inquired of, hea1'd, 01' determined in the said
COU1't shall be subjeet and liable to, and. shall suffer aH
such and the same pains, penalties, and forfeitures as hy
any law 01' laws now in force persons convieted of tlle
same wouJd be subjeet and liable to in case thc same had
been committed and \yere respeetively inquired of, tried,
heard, and determined amI adjndged in England, any law,
statute, 01' mage to the contrary notwithstanding. (6)


Thc Supreme Comt is also a Comt cf Equity, and has
power and authol'ity to administer justice, and to do.
exercise, and perform all slleh aets, matters, and things,
neeessary fol' the due exeeution of su eh equitable juris-
diction. as the Lord High Chancellol' can, 01' lawfulIy
may, within the realm of England; and all sueh aets,
matters, and things as can 01' may be done by the said
Lord Bigh ChaneelIor within the l'eahn of England in the
exereise of the common law jurisdietion to him belonging.
The Charter of Justiee expl'essly authorizes tbe Supreme


(6) An ¡nformation or iuuirlment
upan 9 Geo. 4, c. B3, s. 4, mus! aver
that the o/fender is a British suhject,
ond thal lbe ship is a llritish ship ;


and cviucnce mus! be givcn ta supo
port both these allegalions. See Uer
v. Hdsham, 4 Caro &. Payne's Hep.
p.394.




:-iEW SOUTII WALES. 611
COUl't to appoint guanlians aneI keepers of infants amI
theír estates, and also of the pel'sons and esta tes of natural
fools, and of such as are 01' shall be deprived of their un-
derstanding 01' reason by the act of God, so as to be
unable to govern themselves and their estates, which the
court may inquire of, hear, and determine by inspe.ction
of the person, 01' such other ways and means by which the
truth may be best discovered and known.


The !) Geo. 4, e. 83, enacts that the Supreme Court
shall have eccIesiastical jurisdiction, and shall have full
power aneI authority to administer aneI execute such
ecclesiastieal jurisdiction amI authol'ity as hath been 01'
shall be committed to the said Supreme Court by His
Majesty's said charter 01' letters-patent so issued 01' to be
issued as aforesaid; provided that in aU cases where the
exeeutor 01' executors of any will, upon being duly eited;
shall refuse 01' negleet to take out probate, 01' where the
next of kin shaH be absent and the effects of the deceased
shall appear to the said eourts to be exposed and liable
to waste, it shaIl be lawful for the said eourts respectively
to authorize and empower the registrar 01' othel" minis-
terial officer of the said Supreme Court to eollect such
effects, and hoM 01' deposit 01' invest tIte same in such
manner and place, 01' upon such security and subject to
such ordersand direetions as shall be made, either as
applicable in aU such cases 01' special1y in any case, by
the said comt in respect of the custody, control, 01' dis-
posal thereof.


The Charter of Justice gives the court fuU power i{)
grant pl'obates unHel' the seal of the court "of aH 01' any
of the inhabitants of that part of the said colon y and its
dependellcies situate in the island of N ew Holland, and
of aU other persons who shall die and leave personal
effects within that part of the said colon y ;" and where
the executor ·refuses to act, or the testator die s intesta te,
01' does not name an executor resident within the colony,
to commit letters of administration with the will annexed,
and to sequester tite goods and chattels and credits and
other effects whatsoevel' 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, heal',
examine, and allow, und if occasion l'equire to disallow
and reject the amounts of them, in such manner amI fonIl
as i8 now used 01' may be usen in the saiel dioci!8C oi'


R R 2




612 NEW SOUTH \VALES.
London. The court however is requil'ed, where letters
ofadmini;;tration shall be commÍtted with the will annexed,
for want of an executor appearing in due time to sue forth
the probate, to reserve the power and authol'ity to revoke
the same, and to grant probate of the said will to such
exec~tor wheneve.r be sbáll duly appear and sue for the
same. Tbe comt may grant letters of administration with
tbe will annexed to any one 01' more of the lawful next of
kin of such person so dying and bcing then resident in the
colon y and of the age of twenty-one years; and in case no
such person shall be resident, 01' being cited shall not ap-
peal' and pray tIte same, tllen to the registrar of the comt,
01' to any other pel'son 01' pel'sons as the comt shall see fit.
The pl'obates are not to extend to money, goods, chattels,
01' effects not within the colony. The court, befare
granting letters of administration, is bound to require a
bond of every perSOI1 to whom they sball he committed,
and also to requil'e sureties fol' the due administl'ation of
the effects. The conrt has the powel' to alIow an execu-
tor 01' administrator snch commissiol1 01' pel' centage out
of tbe assets as shall be just and reasonable for his
pains and trouble, if the executor 01' administratol' sball
have passed bis accounts and obeyed the orders of the
court.


The Supreme Comt is empowcl'eu by an Act of the
Legislative Council to appoint tl'Ustees to discovel', collect,
and receive the estates and effects of insolvents, and to
make orders for the distl'ibution of the producc of such
effects equalIy and rateably among the creditors. It may
be observed that the laws in force within the colony upon
the subject of insolvents' effects, are based upon the In-
solvent Debtol's' Act in operatioll in England, and that
the powers of ¡he court in this respect are prccisely tlle
same as the Insolvent Debtors' Court in EngIand, except-
ing that the Jlldge of the Supreme Comt has authority to
gl'ant certificates discharging the insolvent fmm future
liability, with the consent in writing of the major part in
number and value of the creditors, with a restriction, how-
ever, that such certificate sball llot be allowed a second
time to the same pel'son, " unless his 01' her estate, when
collected and reaJized, shall be suffiéient to pay at least
158. in the pOlllld; a 111 I also tbat no pel'son 01' pel'sons
who shall bt' declared insolvent a third time 01' oftencr
shall he entitled to any such certificate."




NEW SOU'l'II \VALES. 613
An Ol'llel' in Council, lIatell October 19th, 18~4, au-


thorizea the Chief Justice of the Supreme Court to make
" rules aneI orders touching and concerning the time and
place of holding the sittings of the Supreme Court, the
forms and manner of proceeding, ana the practice amI
pleadings upon all indictments, informations, actions, suits,
&c., 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 CQurt. The first was, perhaps, the most im-
portant. It directed "tbat tbe respective rules and orders,
forms 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 the exercise of the several juris-
dictions of the said Supreme Court of N ew South Wale!;',
so far as the circumstances and condition of the said
colony shall require and admit, and so far as such rules
and orders and forms of practice shall 01' may not be
herein 01' at any time hereafter altered by sorne rule 01'
order specifically provided and adapted to the conduct of
business in the said Supreme Court." The second order
provided that the proceedings within the several and re-
spective jurisdictions of the Supreme Court should be
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 allowed to the prac-
titioners and officers of the courts in England. There
were others to the number of nine, but they have since
been abrogated.


On the 9th September, 18526, several nCw rules were
issued. The first required that "every action at law
which shall hereafter be commenced shall be enterell in a
8hort 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 of




OH NI::W SOUTH WALES.
the action is thcn set forth, accol'ding to thc form in which
it hasheen all'eady entered in the clerk's book, and the
process concludes "as will more particularly he set forth
in a declaration to he then and there exhibited." The
thil'd rule gives the form of a warrant oí arrest, and the
next declares the times when process shall be returnable.
The fifth rule alters the times pl'eviously fixed for the
terms, declaring they shall eommence and determine on
the 6rst 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
shall eommence the Monday following 01' end the Satur-
day preceding." The ninth rule directs that the manner
of appearing shall he by a brief entry in the "clerk's
book" under the entry of the action appeared to; but if
the defendant shall fail to appear on the day required by
the process, the plaintiff shall enter an appearance and
proceed as if the defendant had appeared. The tenth
rule is one of rather a novel charaeter, for it alIows a de-
fendant 01' defendants, when he 01' they cannot be found
by the sheriff, to be summoncd to appear byadvertise-
ment in the Sydney Gazette, and in case the defendant 01'
defendants do not appear on the day mentioned in such
110tice "the plaintiff may, UpOl1 due proof thereof, enter a
suggestion to such effeet in the said eomt. and the same
shall be minuted in the clerk's book; and the plaintiff
may thercupon pl'oceed in such action in like manner as
if such defendant 01' defendants had be en (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 dcfendant is to appear, in default of
which a non pros may be entercd. The twelfth rule
allows particulars Qf demand to be filed instead of a de-
claration in aH cases where the Courts at Westminster
l'equil'e pa1'ticulal's to be given. The same rule direets
that when a declaration is filed it shall set forth "in a
plain, simple, and compenclious manner, the tl'ue cause
for which the plaintiff brings his action, amI particularly
avoiding all superfluous forms und unnecessary matter."
The thirteenth rule pl'ovides that no nonsuit 01' dcmurrel'
shall be allowed fol' mistakc between actions of trespass


(7) See ante, 93, n. (9), and the ca,e, th~re cited.




NEW SOUTH W ALES. 615
and case. The fourteenth, fifteenth, and sixteenth mles
l'cquil'c that pleas 01' demurrers shall be filed within eight
days from the return of the writ; but allow 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," or, instead of a special
pIe a, 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 düring the
proceedings, a judge may allow the defendant to amend
his noticc, 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 colon y, 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' infirm, 01' otherwise disabled from
attending the trial. The twenty-fiftb rule provides that
the origÍl,ml pleadings in the cause, and the book of mi-
nutes relating thereto, shall be in the place of, and of the
like force and efti:lct as, a record of nisi príus regularly
made up and passed. By rule 26 the verdict is tobe
entered by the clerk in his minute book. Rúle 31 pro-
vides "that immediately after judgment shall be pro-
nounced it shall be entered in the clerk's book, and such
entry shall set forth the debt, damages, costs, 01' thing
l'ecovered, and the day on which such judgment was
pronounced. Aml tbe party obtaining such judgment
shall, before execution, file in the office of tbe Supreme
Court a 1'011 of such judgment, wherein shall be set forth
in a compendious manner the substantial parts only of the
proceedings; viz. the style of the comt, 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
fol' 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
soJd, amI should thcy not l'calizc thc amonnt levied for,




616 NEW SOUTH WALES,
the sheriff is to proeeed to sen the l'emainder; andio
case there shan be any surplus arising from the sale, the
sheriff is to cause it to be paid to the defendant, or his
attorney, within six days after he shallhave received the
same. By rule 41 it is decIared "that where any judg-
l1l,ent by default 8hall be obtained against any person who
at the time of su eh judgment shan have been absent (8)
from N:ew South Wales, amI sueh person shall, 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
sha11, in a summary way, proceed to inquire into the case;
and if it shall be proved that more money hath be en 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 shaIl pass by defauIt 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 shan be removed; provided,
however, that no such summary proeeeding. sha11 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 shall be entered up on a warrant
of attorney unless it shall appear, by the subscription of a
justiee or an attorney duly admitted in the Supreme
Court, to have be en made in his presence. The forty-
fourth rule allows the representatives, when a party to a
suit dies, ir such aetion, suit, or other proceedíng might
have be en originally prosecuted or maintained by 01'
against the heirs, executors, or administrators, to be
made parties to such suit, and thereupon a suggestion of
the death of the original paríy and the admission of his
heirs, executors, 01' administl'ators in his. stead, shall be
entered in the clerk's book, and such action, suit, or other
proceeding shan be continued in like manner as if su eh
heirs, executors, 01' administrators had bcen originally
parties thereto. The forty-fifth rule declares "that it


(8) See ante 93, n. (9), and the ca~es there cited.




NEW SOUTH WAI,ES. 617
shall be lawful for a plaintiff or defendant in any suit
where a party being afeme sale at the commencement of
the suit sball afterwards intermarry, to apply for a rule to
make tbe busband a party." Tbe forty-eighth rule pro-
vides tbat the court may dispense with any particular rule
if the adhering to it would prove a hardsbip to a suitor.


Tbe fiftieth rule declares tbat " the court sball hold its
sessions in four certain months in cvery year, for tbe
hearing and determining of crimes and misdemeanors,
and for tbe 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 anel Terminer and of Assize and Nísi PrillS in
England stand in relation to the King's superior Courts
of Record at Westminster.


Vice-Admiralty Court.
Tbe Cbief Jllstice 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 bim to Ínterfere in criminal cases, as the Supreme
Court is empowered to take cognizance of offences com-
mitted in place s whcre tbe admiral has jurísdiction.


General and Quarter Seúions.
The Courts of General and Quarter Sessions may take


cognizance, in a summary way, of aH crimes, i!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 tried according to the forms adopted in
the Supreme Court.


Tbey 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, 80 far as the circumstances amI con-
dition of the colony will permito


Courts of Request.
These courts are established un del' the authority of the


9 Geo. 4, c. 83, and are authorized to hear and deter-
mine, in a summary way, aH actions, plaints, and suits for
the payment 01' recovery of any debt, damages, 01' matter
not exceedíng ..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 Rís Majesty, 01' to any fee of office, annual rent, 01'
other such mattel' where rights in fnture would be bound,
01' to any general right 01' duty, and to award costs. The
decision of 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 aH the
comts; he receives his appointment undel' the sign ma-
nual, with such salal'Y as His Majesty shall directo


The Arcltdeacon's Court.
This court, which has jul'isdiction in ecclesiastical affairs,


is appointed by charter. This colony, as well as those of
Van Dieman's Land and Swan River, is at pl'esent within
the see of Calcutta, and ís called the Austl'alian Archdea-
conry, there being one archdeacon appointed by His Ma-
jesty to superintend the spirituaI concerns of the colonists.
It does not appear, however, that the archdeacon has ever
exercised any power except that of receiving the regis.ters
of bh·ths, though he has appointed a registrar, and has
powers equal to those of the bishop whilst the bishop is
absent fram thatpart of llÍs diocese. (9)


(9) An Order in Council, issued
on the 2d October, in tbe fifth year
of the reign of Geo. 4th, appoiuted
Ihe Archdeacon aud his successors a
body corporale, to hold any property
within the settlements, aud to arpear
aud defend suits in Ihe conrls as sueh.
It also appointcd lhe Archdeacon
Commissary of the llishop of Calcutta
within tbe icttlcmcnts, ",ilh powcr to


exereise jurisdietion in all eeclesiasti.
cal matters (exeepting causes testa-
mcntary 01' matrimonial) according
to the d \1 ty and functions of a Com.
missary by the ecclesiasticallaws. As
the Arcbdeacon has jurisdiction givcn
him in his arebdeaconry, the appoint-
ment ofCommissary aprears superfin.
ous.-4 Inst. 338. num's Eeeksiasti·
cal Law, tilles Chanccllor ,Commissary.




!,;hW IiOUTH WALES. 619


Court qf Appeals.
From the decisions of the Supreme Court an appeal


lies, (1) in all aetions where tlle sum 01' matter at issue ex-
ceeds the value of ¿f500, 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 A ppeals 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 shall
and may be lawful for His Majesty to allow any person 01'
persons, feeling aggrieved by any judgment, decree. order,
01' sentence of the said Court of Appeals, to appeal tllere-
froro 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 chal'ter and
letters-patent, shan appoint and prescribe." It is pro-
vided also, that " in case it shaIl be made to appear to the
satisfaction of the Judge of the Supreme Court that the
judgmcnt, decl'ee, order, 01' sentence of the COUl't may be
of peculiar impol'tance, 01' may affcct dil'ectIy 01' indirectly
any claim, demand, 01' question to 01' respecting property,
or any civil right amounting to 01' of the val~ of ¿f500
aterling," an appeal ahaIl 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 shaIl 01' may be given, made, 01' pronounced, shaIl
not amount to 01' be of the value of ¿f500 sterling." And
to encourage and promote the introduction and use of
trial by jury in civil cases among the colonists, it ia further
provided, that "upon any appeal to be brought to the
said Court of Appeals from any judgmcnt of the said
Supreme 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 ol1ly fol'
error of law apparent upon the record,"


In case any judgment, decree, orde¡" 01' sentence sbaIl
be pronounced by the Court of Appeals for 01' in respect
of any sum 01' matter at isaue aboye the value of .t:l2000
sterling, 01' in case such judgment, decl'ee, order, or sen-
tence shaIl involve directIy or indirectJy any elaim, de-


(1) Wentworlh, 3d ed. p. ;]41.




6.z0 ¡iJEW SoUTH W ALES.
mand 01' question to 01' l'especting propcrty, 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 shail have been pronounced, made 01'
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 decisíon 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 appea!. The Court
of Appeals is· also requíred to take security fol' costs
from the appellant, and if such security is not given
within three months from the date of such petition fol'
leave to appeal, the COUl't of Appeals is not to allow the
appeal. But if the party feeling aggrieved by the deci-
síon of the Court of Appeals shaIl 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 shaIl be entertained by the King
in Council, the Suprcme Court is to conform to and exe-
cute 01' cause to be executed such judgments and orders
as shaIl be made in the pl'emises, 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 numbel' is made up
with magistrates of the colony.(2)


(2) By lhe 9 Geo. 4, e.83, s. 10,
His Majesty is empowcred to autho-
tize the Governor to cxtend and ap-
ply tho form of procceding by grand
and pcli! juries; and from some late


inquiries in the eolony as to the policy
ofintroducing those constitutional ho-
dies iDto the cour!s, it is no! improba-
ble lha! the presen! deformcd system
will be shorlly abolished.




NEW SOUTH WAI,ES. 621
Issues of fact are tried by a judge :md two assessors,


being magistmtes, and liable to be challengcd; but either
plaintiff 01' defendant may apply for a trial by jllry to the
court, which has the powe1' to grant 01' refuse the motion.


'rhe assessors are appointcd by thc Govcrnor, and
they and the jlldge decide upon matters of fact.


1t has been usual for the judge to require the asses-
sors to receive thc law upori the mattel' in dispute from
l1im, and only to decide upon contested matters of fact;
but in cases where the assessors have d.iffered, the judge
has al so decideu the matter of fact, that i8 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 invested with the peculia¡'


power of instituting procee!lings of a c¡'iminal natme in
tlle Supreme Court, 01' at the COllrts of Quarter Sessions,
as not only are aH offenecs prosecuted by information in
his name, but he has the powcr of finuing 01' ¡'Cfllsing the
information, there being no gmnd jury. He is thcrcfore
to be eonsideretl in the light of a public prosecutor.


'fhe SUlll'eme Court, however, may allow any individual
to exhibit a criminal information against any person 01'
persons· for any crime qr misdemeanor not punishable
with death, hut even tIten the proceedings al"e conducted
in the name of the Attorney-General.


Judges, Barristers, &;c.
The act 9 Geo. 4, c. 88, allows His Majesty to appoint


not more than three judges of the Supreme Comt, and
this numbe¡' has becn completed.· The requisite qualifica~
tion for a jlldge is, that he shall be a barrister in Englaml
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,
Ol" incapacity from disease or infirmity, of a judge, the
Governor may appoint some person to act in his stead
until tbe jlldge retul"Ils to bis duties, 01' another appoint~
ment is made by tbe King.


The jlldges of the SlIpreme Comt are authorizecl by
thc chartcr to admit and enrol slIch and so many persons




622 N EW SOIJTlI W.\LF.:.i.
having becn admitteu barristers at Jawol' advocates in
Great Britain 01' !reland, 01' having been admitted writers,
attornies orsolicitors in one of the courts of Westminster,
Dublin 01' Edinburgh, or having be en aamitted 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' the colony, are in force, ana
when any doubt a!'ises as to their applicability, the Go-
vernol' ana Legislative Council decide the question, (5) if
there is time to refer to them; but if not, the opinion of
the judge presiding must guide the suitor.


The principal acts of parliament particularly relating to
this colony and its dependencies, and now in force there,
are the 54 Geo. 3, C. 15; 4 Geo. 4, C. 96; 5 Geo.4., C. 84 j
6 Geo. 4, C. 69; 9 Geo. 4., C. 83 j and 2 & 3 "VIllA, C. 6D.


'l'he 54 Geo.3, C. 15, intituJed "An Act for the more
casy Recovery of Debts in His Majesty's Colonies of New
South Wales," was passed with a view to enable traders
in Great Britain to sue their debtors in the cou1'ts of the
colon y ; it enacted, that in any\<suit 01' action depending


(3) A rule by the chiefjusticc', daled
MaTch 7, 1829, requires that every
person who shall intend to apply to
Le admitted an attorney 01 solicitor of
lhe Supremo Court, shall for the space
01' one full term, previous to the term
in which he shall apply to be admit-
ted, cause bis name, &c. to be affixed
in the office of the Supreme Court, and
to gi ve notice of his intended applica-
tion by advertisement in the news-
papees_ By a subsequent rule it is
provided, that no person shall in fu-
ture be admitted as an advocate un-
less he be one in Great Britain OI
IreJana; and that no persons shall be
eligible to act as solicitors or attor-
nies, unless admitted as solicitors, at-
tornies, proctors, or wáters to (he
signet, in some one or other of the
King's Supreme Cour!s within the


U nited Kingdom of G reat Britain or
Ireland, or unless he has been arli-
cIed to SOrne practising solicitar Of at-
torney in New Sou(h \Vales, and
has served (he tcrm of ¡¡ve years, or
unless he has duly servad part of the
¡¡ve years of articIesbip in New South
'Vales, and the other part in England,
01' vice vers';, or shall have served the
term of five years as a clerk in the
oflice of the Supreme Court. This lat-
ter rule, however, is not to come ioto
operation until His ~Iajesty's pleasure
is known, it being repugnant to the
charler.


(4) Sce ante, p.3 to 16, upon the
general topie how far (he colonies are
subjcct to (he law of the mother-roun-
try.


(5) 9 Ceo. 4, C. 83, s, 24.




KCW SOUTIl WALES. 623
"for 01' relating to any debt 01' account, whcrein any
person residing in Great Britain shall be a party, it shall
amI 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' suít, to verify 01' prove any mattel'
01' thing by affidavit oc affidavits in writing upon oath, 01'
in case the person 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 corporatc in Great Bri-
tain,(6) whel'e 01' near to which the person making such
affidavit 01' affirmation shall reside, and certificd and trans-
mitted .under the common sealof such city, borough, 01'
town corpol'ate, 01' the seal of the office oi' such mayor
01' other chief magistrate, which oath anel solemn affirma-
tion every such mayor and chief magistrate shaU be und
is hereby authorized and empowered to administer; and
every affidavit 01' affirmation so madc, certified and trans-
mittcd, shall in all actions and suits be allowed to bc of
the same force and eRect as if the person 01' pel'sons
making tIJe same upon' oath 01' solemn affirmation as
aforesaid had appeared and sworn 01' aftinncd the mattel'S
contained in such affidavit 01' affirmation vivá vuce in
oren court, 01' upon a commission issued for the examina-
tion. of witne8ses, 01' of any party in any such action 01'
suit l'espectively: provided that in every such affidavit 01'
affirmation there shall 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 actions
by subjects; and the third seetion declares, that if any
one shall wilfully swear 01' affirm anythillg that is false, he
shan be deemed guilty of perjury.


The fourth section of the same aet is one of great im-
portan ce to creditors; it enacts, that houses, lands, and
üther hereditaments and real estates situate 01' being
within the said colony of N ew South \Vales 01' its de-


(6) lt will be observed that thisact of any city, borough or town corporate
uoes not permit un affidavit to be sworn in Ireland.
before t.he mayor 01 chief maglstrate




624 NEW SOUTH WALES.
pendencies bclonging to any person indebled, 8ha1l be
liabIe to and chargeable with aU just debts, duties and
demands of what nature 01' kind soever, owing byany
sueh person to His Majesty 01' any of his subjects, and
shall and may be assets for the satisfaction thereof."


Convicts are now transported to these eoIonies under
thé authority given to His Majesty to appoint places to
whieh feIons 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 Governol'. In arder to facilitaíe the proof of the con-
viction of convicts in the colonial comts, section 24 enacts,
that the clerk of the comt having the custody of the re-
cords of the comt where the sentence 01' order of tran8-
portation has been passed 01' made, is to makc out on
request of any person on behalf of His Majesty, and give
a certificate in writing, containing the éffcct anu substance
onIy ofthe indictment amI eonviction of the off ende}', and
of the sentence 01' order of transpol'tation; which eertifi-
cate is evidence of tho conviction and sentence 01' order of
transportation.


By the 3d se~tion 6 Geo.4, c. 69, one 01' more justices
may take cognizance of and punish convicts, whose sen-
tenees have not expired 01' been remitted, for any erime
01' misdemeanor not punishable with death, and may take
cognizanGe of complaints made against sueh eonvicts for
drunkennoss, disohedience Qf orders, neglect of work,
absconding 01' desertion, abllsive Ianguage to their, his 01'
hel' cmployers 01' overseers, insuboruination 01' othel' tUl'-
huIent 01' disorderlyeonduct, 01' fol' punishing such of-
fenees 01' any of them: provided that no such justice 01'
justices shall exercise any such powers, authorities, 01'
jurisdictions as aforesaid, in any case where any court of
general 01' quarter sessions sha11 be appointcd to be held
within one week after the complaint shall he preferred
against any such offender, at any place not more than
twenty miles distant from the place at which the offence
shall he charged to have been committed. 'fhe 4th
section authorizes the Governor to transport from the
colony any convict again convicted to pIaces which he
may appoint.(7)


By section 2, 2 & 3 Wm. 4<, e, 62, it is enaetcd, "that


(7) Convicts re-convicteu are sent
from New South Wales to Norfolk
Island, and from Van Diemen 's Land


lo Port Arthur_ See ante, p. 600,
notes (1) and (2).




NEW SOUTII WALES. 625
nchher the Governor nor Lieutenant-Governor of any
isIand, coIony Ol' settlement, nor any other person, shall
give any pal'don 01' ticket of leave to any persoll sentenced
to transpOl·tation, 01' who shall receive a pardon on condí-
tíon of transpol'tation, 01' any order 01' permission to sus-
pend 01' remit the Iahour of any such person, except in
cases of illness, until su eh pcrson, if transported for seven
years, shaIl have served fom; if transpol'ted fOl' fourteen
years, shaIl have served six; 01' if transported 1'01' life,
shall have served eight years of bboUl'; and that no such
}Jerson shall be capable of acquiring or holding any pro-
}JCl'ty, 01' of bringing any action for the recovery of any
property. until after such person 8hal1 have duly outained
a pardoft from the Governor 01' Licutenant-Governor of
the colon y 01' settlement in which he 01' she shall have
be en conflned: províded that nothíllg hereín contained
shall in al1y manner affect His Majesty's royal prerogative
of merey."


ACTS PASSED BY TIIE COLONIAL COUNCIL.


Sínce the LegisIative Councíl has been called togethet'
a great number of aets have been passed, but they ehiefly
relate to matters of police anJ revenue. there are how-
ever others deservíng of consideration. The act passed
in 1825, No. 21, entitleJ "An Act for better regulating
and preserving pal'ish and other Registers of Births,
Baptisms, Marl'iages anJ BuriaIs in New South Wales
ancl its dcpendencies, incIuding Van Diemen's Land," is
one of impOl·tancc: ít enaets among other things, that
after the 1st January, ]826, registers of baptisms, mar-
riages anJ burials shall be kept by the officiating minis-
ters of evel'y pal'Ísh in books of parchment 01' durable
paper, and that copies of an en tries shall be tl'ansmiUed
annually to the registrar of the Archdeaeon's Court by
the respective ministers of thc differentl'arishes.


The act passed in 18Q5, No. 22, entitled "An Act fol'
registel'ing Deeds and Conveyances in New South Wales,
and for other pmposes," is an aet deserving of attentíon,
as it requires all deeds, .conveyanees and other instru-
ments (except leases for less tban three years) to be regís-
tered in the offiee of the Supreme Court, alld when regís-
tercJ to have pl'iority according to the date of registration.
Tbc officcl' 01' cIcl'k of thc Supreme COllrt receiving a


ss




NEW SOU'l'H WALES.


memorial of any instntll1cnt fol' rcgistt'ation, is requircd
to give a rcceipt fol' the same, specifying the day, hour
and time of its delivery, and immediately to indorse on
the back of sueh memorial the number and the time of its
delivel'Y 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 Suprcme Court in New
South Wales, 01' if made in Grcat Britain 01' Ireland
before a mayor 01' chief magistrate of any city, shall be
valid, but memorials oi' such deeds are to be registered in
the o.ffiee of the Supreme Court.


An aet passed in the year 1828, No. 6, authorÍzcs the
Governor 01' acting Governor to grant letters of deniza-
tion, (8) which are to be recorded in the oflke of the
Supreme Court, to such foreigners as may arrive in the
colony with a recommendation to that effect from His
Majesty's Principal Secretary of State for the colonies.


The act, No. 9, of the same year, "An Act fol'. tIJe
better Regulation of Servants, Labollrers 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 froro- work,
he may be brollght before a magistrate, and on conviction
sha11 be committed to the common gaol or house of cor-
rection for any time not exceeding six months 01' three
months respectively, and shall forfeit allwages and payo
The second section of the act enacts, that every person
employing 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. The third section provides, that
servants spoiling, destroying 01' losing any property en-
trusted to them, sha11 pay double the value of such pro-
perty, 01' be committed to gaol for any time not exceed-
ing six nor less than one month. Upon proof of any
ill-usage from a.y employer, magistrates are authorized
by section 4 to order 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 decision of
a magistrate, he may appeal to the next quarter ses-
sions. (9)


(8) Thero are also acts passed fOI (9) Tlle 9 Guo.4, c.83, alJows
llaturaliúllg t\'.'o forcignc!·~3. mcchanics, arlisans, agricultural la-




NEW SOUTH W ALES.


I'he aets rclating to the 'prcss require a person having
a printing-prcss and types to give notiee thereof to the
Colonial Secretal'y, under a penalty of ,ew; and printers
to affix their names to every book or paper printed, under
a penalty of 1.:520. N ewspaper editors, printers, proprie.
tors, and publishers, are required to lodge an affidavit
with the Colonial Secl'etary, stating theil' abo de, &c., and
to enter into recognizance with sureties to pay aH pe-
nalties they may ineu!" in cases of libel before they pub-
lish a numuer of the papel'. Per¡;ons twice convicted of
bIasphemous 01' seditious libeIs to he banished the settle-
mento


1'he laws relating to convÍcts 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 01' other offences fol' wbich the law
of England assigns transportation as tbe punishment,
may be treated as a eonvict sent from England, and
sbould he again offend, he may be sent to a penal settle-
ment.


-


CHARTER OF JUSTICE-NEW SOtJTH WALES.


13th Octobel', 1823.


GEORGE the Foul'th, by the grace of God,of the United Kingdom of
Gl'eat llritain and Ireland, King, Defender of the Faith, to all to whom
these presents shall come, greeting: Whel'eas by an Act passed in tbe
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,
for tbe belter Administration of Justice in New South Wales and Van


. Diemell's Land, and fol' the more effectual government thereof, and fol'
other purposes relating thereto," it was enacted that it should be lawful
for us, our heirs, or 8uccessol's, 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 "Tha Supreme


bours and others, to execute in Eng-
land agreements, (without stamps,)
binding themselves to work for seven
years in the colony for the person, his
heirs or assigns, who shall convey
thcm there. If mcchanics, &c. should


not adhere to the agreement entered .
inio in England when they arrive in
the colony, they may be punished
either under the colonial act or the
9 Geo. 4, c.83. '


ssQ




628 NEW SOUTH WALES-CHARTER OF JUSTICE.
Court of New South Walcs," and "Thc Sllpremc Court of Van
Diemen's Land ;" and that each of such courts respectively should be
holden by one judge 01' chief jllstiee, and should have su eh ministerial
01' other officers as should be necessary for the ad ministration of justice
in the said COUl'ts 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, om heirs, and
suceessors, 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 offices in such manner as we, om heirs,
and successors ShOllld by such charters 01' letters-patent as aforesaid
direct; and that the said judges should be respectively entilled lo
receive such reasonable salaries, as we, our heirs; and successors shou1d
approve and direct, which salaries should be in lieu of all fees 01' otlter
emoluments whatsoever: Now know ye, that we, upon full consitlera-
tion of the premises, and of our especial grace, certain knowledge, and
mere motion, have, in pmsuance of the said Act of Parliament, thought
lit to grant, direct, ordain, and appoint, and by these presents do ac-
cordingly for us, our heirs, and successors grant, direct, ordain, and
appoint that there shall be within that part of our colony of New South
Wales situate in the Island of New Holland, a court, which shall be
called a Supreme Court of New South Wales; and we do hereby
create, direct, and constitute the said Snpreme Court of New South
Wales to be a court of record; and we do further will, ordain, and
appoi!lt that the said Suprem~ Comt of New Soulh Wales shall consist
of and be bolden byand before one judge, who shall be and be calleu
the Chief Justice of the Supreme Court of New South Wales, which
Chief J ustice shall be a balTistcr in E~gland or Ire\and of not less than
five years standing, to be namcd and appointed from time to time by
us, our heirs, and successors, by letters-patent under our and tltej¡'
great seal of the United Kingdom of Great Britain and Ireland; and
such Chief J ustice shall hold bis office d uring the pleasure of us, our
heirs, and successol'S, and not othe¡'wise; And we do hereby give alld
grant to our said Chief J ustice rank alld precedellce above and before
all our subjects whomsoever within the colony of New South' Wales
aforesaid, and the islands, territol'ies, and places dependent thereupon,
exceptins the Governol' el' acting Governor for tbe time beillg of the
said colony, and excepting all such persons as by law 01' usage take
place in England befo re our Chief Justice of our Court of IGng's
nench : And we do furlher grant, ordain, and appoint that the said
Supl'eme Court of New South \Yalcs sha\l have and use, as occasion
!Ilay require, a sea1, beal'ing a device and impression of our royal arms
withiu an excrglle 01' label surrounding the same, with tbis impres~ion,
"The Seal of Ihe Supreme Comt 01' New South \Vaks;" aul we do




NEW SOUTH W ALES-CIIARTER ol' JUSTtCE. 6~
h€reby grant, ordain, and appoint lllat lhe said seal shall be delivered


to and kept in the custody of lhe said Chief Justice: And we do further


grant, ordain, and declare that the said Chief J ustice, so long as he shall
hold his office, shall be entitled to have and recei ve a salary of 1:2000


sterling hy Ihe year; and our Governor or acting Governor for the time


being of the said colon y is hereby directed and required to cause such


salary lO be paid to tiJe said Chief Justice by four quarterly payments,


al the four most usual days of payment in the year, in bilis of exchange


lo be drawn by such Governor or acting Governor as aforesaid, on the


Lords Commissioners of our Treasury in England, payable to or to tbe


order of such Chief Justice, and which bills sha11, 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 und take place in respect to any person who sha11 be resi-


dent in Greal Britain or Ireland at the time of his appointment, upon


ami fmm lhe day on which any such person sha11 thereupon emhark or


depart from Great Brilain or Ireland for New South Wales, to take


upon him the execution of the said office; and that the salary of any


such Chicf Ju~tice who shall at the time of his appointment be resident
in N~w South 'Vales aforesaid, shall commence and take place from
and alter his taking upon him the execlltion of such his office: and


that sl1ch salary shall be in lieu of all f'ces of office, perquisites, emolu-


ments, and advantages whatsoever, and that no fee of office, perquisite,


emolument, or advantage whatsoever, bther than and except the said


salary, shall be accepted, received, or taken by 5uch Chief Justice in
any manner or on any account or pretence whatsoever: Provided never-


theless, that it shall be lawful for the said Chief Justice to occupy and


inhabit any official house or residence within tbe said colony of New


Soutb Wales which hath been or may hereafter be provided for his re-


sidence and occupation. without paying to us, our heirs, and successors


any rent for the same, and without being obliged to repair; uphold, or


maintain any such house or official residence at his own costs and


chal'ges: And we do further grant, appoint, and declare that no Cbief


Justice of the said Supreme Court of New South Walesshall be capable


of accepting, taking, or performing any otber office or place of profit or


emolument,on pain that the acceptance of any such otber office or


place as aforesaid, shall be and be deemed in law defacto Rn avoidance
of his office of Chief J ustice, and the salary thereof shall cease and be


deemed to have ceased accordingly from the time of such acceptance of


any such otber office or place: And we do hereby constitute and


appoint our trust y and well-beloved Francís Forbes, esquire, to be the


first Chief Justice of the said Supreme Court of New Soutb Wales, the


said Francís FOl'bes 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.
sha11 be and belong to the said court the following offieers, that is to
say, a Registrar, a Prothonotary, a Master and Keeper of Records, and
such and so many officers as to the Chief J ustice of the said eomt for the
time being shall from time to time appear to be necessary for the admi-
nistration of justice, and the due execution oí al! the powers and
authorities which are granted and committed (o the said court by these
our letters-patent: Provided nevertheless, that no new office shall be
created in the said court, imless the Governor or acting Governor for
the" time being of our said colony shall first signify his approbation
lhereof to our said Chief Justice (or the time being, in writing, under the
hand of such Governor or aeting Governor as afol'esaid: And we do fur-
ther ordain and direet that aIl persons who shall and may be appointed
to the several offices ofMaster, Registrar, Prothonotary-or Keeper of Re-
cords ofthe said Supreme Court ofNew South Wah;s, or to any offices
in the said court, whereof the dúties shall correspond to those performed
by the Master, Registrar, Prolhonotary, or Keeper of Records of any or
either of our Courts of Record at Westminster, shall be so appointed by
us, oul' heil's, and successol's, by warrant under our or their royal sign
manual; and that aIl persons who shall and may be appointed to any
other office within the said Supreme Court of New South Wales, shall
be so appointed by the Chief J ustice for lhe time being of the said court.
And we do further direct and appoint that the several officers of the
said eourt so to be appointed as aforesaid by us, our heirs, and sueces-
sor5, shall hold their respective offices during our and theil' pleasure ;
and that the several officers of the said court so to be appointed as
aforesaid by the Chief Justiee'thereof, be subject tabe removed by tbe
said coort from their offices therein upon reasonable cause: And \Ve do
herebyauthorize'and empower the said Supreme Comt of New Soulh
Wales to approve, admit, and eurol such and so maIly persons havillg
been admitted barristers at law or advocates, in Great Britain or
Ireland, or having been admitted writers, attornies, 01' solicitors in one
of our cOUl1s at Westmin~ter, Dl1blin, or Edinburgh, 01' having been
admitted as proctors in any Ecslcsiastical Court in England, to act as
well in the character of Larristers .and advocates, as of proctors, attor-
nies, and solicitors in the said court; and which persons, so approved,
admitted, and enrolled as aforesaid, shall be and are hereby authorized
to appear and plead and act for the suitors of the said comt, subjecl
always to be removed by the said COUl't from their station therein, upon
reasonable cause; and we do declare that no person or persons what-
soever shall be allowed to appear and plead, or act in the saiel Supreme
Court of New South Wales, for and on behalf of such suitors, or any of
them: Provided always, and we do ordain and declare that in case
there shall not be a suffieient numbcr of such barristers-at-law, advo,
cates, writel's, attornies, solicitol's, and pl'octors witbin lhe saiel colon)",




NEW SOUTH WALES-CIIARTER OF JUSTlCE. G31
competent and willing to appear and aet for the suitors of the said
court, then and in that case the said Supreme Court of New South
Wales shall and is hereby authorizcd to admit so many other fit and
proper persons to appear and act as harristers, advocates, proctors,.at-
fornics, and solicitors, as may be necessary, according to surh general
rules and qualifications as the said court shall for that purpose make
and establish: Províded, that the said court shall not admit any
pcrson to act in any or cither of the characters aforesaid, who hath been
by due course of Iaw 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'
¡.¡me being of the said colony of New South Wales shall yearly, on the
first Monday in the month of January in each year, by warrant under
his hand and seal, nominate and appoint sorne fit and propcr person to
aet as and be the sheriff for our said eolony ofNew South Wales and ilS
dependencies, other than and except thp Island of Van Diemen's Land;
for the year ensuing, whicb sberiff when appointed shall, as soon as
conveniently may be, and before he shall cntcr upon his said office,
take an oath faithfully to execute his office, and the oath of allegiancc,
before the Govcmor or acting Govcrnor, who are herebyauthorized lo
administer the same; and such sheriff shall continue in such his office
during the spacc of onc wholc year, to be computed from the said fir9(.
Monday in the month of January, and until another shall be appointed,'
and sworn into the said office; and in case such sheriff shall die in his
office, or depart from our said colony of N ew South Wales, then another
person shall, as soon as eonveniently m~y be after the death or de-
parture of such sheriff, be in like manner appointed and sworn in as
afol'esaid, and shall continue in his office for the remainder of the year,
and until unothpr sheriff shall be duly appointed and sworn into the
said office: And we do further order, direct, and appoint that the said
shel'iff and his successors shall by themscJves, or their sufficient deputies
lo be by them appointed and duly authorized under their respective
hands and seals, and for whom he and they shall be responsible during
his or theír continuance in such office, execute, and the said sheliff and
his said depnties are hereby authorized to execute all the writs, sum-
monses, rules, orders, warrants, eommands, and process of the said
Supremo Court of New South Wales, and make return of the same,
together with the manner of the execution thereof, to the Supreme
Court of New South Wales, and to receive and detain in prison all such
persons as shall be committed to the custody of such sheriff by the
said Supreme Court of Ne\v South Walcs, or by the chief justice of the
said COU1't: And we do further a\lthori7.8 our Governo!' or acting Go-
vernor fol' t/¡e time being of tlle said coloDy of Ncw SOlltll TVales, I~




63f4 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 annually re-
newed and be not ever made for more than one year: Provided never-
theless, and we do hereby require our said Governor or acting Goveruor
of our said colony, in the s(>lection of any person or persons to fill the
said office of Sheriff of New South Wales, to conform himselfto 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 tit per-
son to execute and return the same, and the said process shall be
directed to the person so to be named for that purpose, and lhe cause
of such special proeeedings shall be suggested and entered on the
records of the said court: Provided always, and \ve do hereby ordain
and declare, that the said Supreme Court of New South Wales shall fix
certain limits heyond which the said sheriff shall not be compelled or
compellable to go in person, or by his offieers or deputies, for the execu-
tion of any proeess of the said eourt; and when the process ()f the said
court shall be to be executed in ,any place or' places beyond the limits
so to be fixed, we grant, ordain, and dlrect that the said Supreme eourt
of New South Wales shall, upon mOlion, direct by what person or per-
sons, and in what manner such process shall be exccuted, anu the terms
and conditions which the parly at whose inslance tlle same shall be
issued shall enter into, in order to prevent any improper use or ahuse
of Ihe 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 tlle said eourt shall direet for lhe execution of such
proeess; and in that ease we direet a~d declare that Ihe said sheriff,
his executor, ana administrators, shall not be responsible or liable for
any aet to be done in or in any way respecting lhe execution of such
process, under and by virtue of such special warrant, and that any per-
son or persons being aggrieved under or by pretence of such special
warrant, shall and may seek their remedy under any security which
may have been directed to be taken upon lhe oceasion, and which the
said court is hereby authorized to direct to be tahn. And whereas in
the said Act of Parliament it is enacted, that the said eourts shall have
cognizance of a1l pleas, civil, criminal 01' mixed, and the jurisdiction of




NEW SOUTH WALES-CHARTER OF JUSTICE. 633
the said courts in all such cases is thereby settled and ascertained;
and it is thereby enacted, that lhe said courts shall be courts of
ecclesiastical jurisdiction, and sball have full power and authority
to administer anel execute within New South Wales and Van Die-
men's Land and the dependencies thereof, such ecclesiastical juris-
diction and authority as shall be committed to the said Supreme Courts
by our charters or letters-patent: Now we do hereby for us, our heirs
and successors, grant, ordain, -establish and appoint, that the said Su-
preme Court of New South Wales shall be a court of ecclesiastical
jurisdiction, with full power to grant prohates, under the seal of the
said court, of the last wills and testaments of an 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
)eave personal effects within that part of the said colony, and to commit
letters of administration under the seal of the said court of the goods,
chattels, credits, and all other effects w hatsoe\'er of the persons afore-
said who shaIl die intestate, or who shall not have named an executor
resident within that part of the said colony and its dependencies;
or where the executor being duly eited shall not appear and sue forth
su eh pl'obate, annexing the wil! to the said letters of administration,
when such persons sha\l have left a will without naming any exeeutor
or any person for executor, who shall then be alive and resident within
that part of the said colony and its dependencies, and who being duly
cited thereunto will appear and sue fOl'th a probate thereof, and to se-
quester the goods and chattels, credits aud other effects whatsoever of
such persons so dying; in cases a\lowed 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
rejeet, lhe accounts of them in such manner and form as is now used or
may be used in the said diocese of London, and to do all other things
whatsoever needfu) and necessary in that behalf: Provided always, and
we do hereby authorize and requil'e the said court in such cases as afore·
said, where letters of administration shall be committed wilh 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 lhe same, and to grant proba te of the said will
to such 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 letlers
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 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 lhe jurisdiction
of the said comt, or being duly cited shall not appear and pray lhe




634 NEW SOUTH WALES-CIJARTER OF JUSTICE.
same, to the registrar of the said court, 01' to such person or persous,
whether creditor or creditors or not of the deceased person, as the court
shall see fit: Provided always, that probates of wills und letters of ad-
ministration to be granted by the said court, shall be limited to such'
moncy, goods, chattels and elfects as the deeeased person shall be enti-
tled to within that part of the said colouy situate within the istand of
New lIolland: und we' do hcreby further enjoin and rcql1ire that every
person to whom such letters of admínistration shall be committed,
shall before the granting thereof give 'sufficient secl1rity by bond, to be
entered iuto to us, our heirs and succcssors, for the payment of a com-
petent sum of moncy, with one, two 01' more able sureties, l'espect
bcing had to the sum therein to be contained, and in the ability of the
sureties, to the vall1e of the cstates, credits and clfeets of the deceascd,
which hond shall he deposited in the said comt among the reeonlR
thereof and there safely kept, and a copy thereof shall al so be recorded
among the proeeedings of the said court; and the condition of the said
bond shall he to the following elfed :-" That if the aboye boundcn
administratol' of the goods, chattels and efTects of the deceased do
make 01' cnusc to be made ¡¡ tme and pcrfect invcntory of ¡¡JI and sin-
gnlar the goods, credits and cffccts of the said cleccascd, which have 01'
shall come to the hands, possession 01' knowledgc ofhim the said admi-
nistrator, 01' to the hands 01' possession of any othe\' person 01' persons
for him; and the same so m~e do exhibit 01' cause to be exhibited
into the said Supreme Court of New South \Vales, at 01' before a, duy
therein to he specificd, amI the same gOüds, chattcls, 'credits and elfects,
and all other the goods, chattels, credits and pffects of the deeeased
at thc timc of bis deatl!, 01' which at any time aftcrwards shall come to
the bands 01' possession of such aumil1istrator, Ol" to the hands or pos-
session of any other person 01' persons for him, shall well and truly
administer according to law, and further shaJl rnake 01' cause to be
made a true and just account of \lis said administration at 01' bcfore
a time therein to he specified, and aftel'wards from time to time as he,
she 01' they shaJl be lawfl111y l'equired, and aH the rest. and residue of
the said goods, chattcls, credits and elfccts which shall be found from
time to time remaining upon the said administration aeeount." the sume
being first examined and al\owed of by'the said Sl1preme Court of New
South \-Vales, shall and do payand dispose of in a uue course of admi-
nistration, 01' in such manner as the said court shall direct, then thiR
obligation to be void and of none elfcet, or clsc to be and l'emain iu
full force and virtue ;" and in case it shall h~ necpssary to put the said
bond in suit, for the sake of obtaining the effect thereof for the benefit
of su eh person 01' pel'sons as shall appear to the said court to he in-
teres(ed thcrcin, such per';6'n or persons from time (o time giving satis-
factorysecurity for paying all such costs as "hall :tri,e [rom the said




NEW SOUTH WALES-CHARTER OF JUSTICE. 635
suit 01' any part thereof, 5uch 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 saill bond shall be put in suit
in the name of the said Attorney-General. And we do further will,
order and require, that the said court shall affix certain pcriods when
all persons to whom probates of wills and letlers of administration
shall be granted by the saill court, shall from time to time, until the
effects of the' deceased person shall be fully administered, pass thcir
accounts relating thereto before the said court; and in case the effects
ohhe 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 sllall see fit so to direct, 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 Ihe deceasen
then in his, ber 01' theil' hands, and all money which shall afterwards
come ¡nto his, her or thcir hands, and also all precious stones, jewels,
bonds, bills, and securities belonging to the estate of the deceascd, in
such manner and unto such persons as Ihe saiel court shall e1irect for
safe custody; anel we require that the said court shall fl'om time to time
jnake such order as shall be just fol' the due aelministralion of such assels
and for the payment 01' remittance thereof 01' any part thereof, as occasion
shall require, to 01' for the use of any person al' persons, whether resident
01' not resident in the 8aid colony and its dependencies, who may be enti-
tled thereto 01' any part thereof as creelitors, legatees 01' next of kin, 01'
by any other right 01' title whatsoe\'er. And we further order and direct,
that it shall be lawful for the said court to allow to any executor 01' ad-
ministrator of the effects of any deceased person (except as herein men-
tioned) such commission or per centage out of their assets as shall be
just and reasonable fol'. their pains and trouble 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
accol1nts at 8uch time 01' to dispose of any money, gooels, chattels or
securities with which he shall be chargeable, in such manller as in pur-
suance of any general or spedal rule 01' order of the said court shall be
I'cquisite; and morcover every such executor or administrator 80 neg-
lecling to pass his accounts, 01' to e1ispose of any such money, gooels,
chattels 01' securities with which he shall be chargeable, shaIl be charged
wilh interest at tbe rale then current wi thin the said colony and its de-
pendencips for such sum and 5ums of money as from time lo time shall
have been in his hands, whether be shall 01' shall not lllake interest
tbereof, And we e10 hel'eby authorize the said Supl'eme Court of New
Sonll! WaleR f.o :tppoint guardians alld keepers 01' infan!, anel their




636 NEW SOUTH WALES-CHARTER OF JUSTIC1!:.
estates aeeording to the order and course observed in that part oY Our
United Kingdom called England, and also guardians alld keepers ofthe
persons and estates of natural fools, and of such as are or shall be de~
prived of their understanding or reason by the act of God, so as to
be unable to govern themselves and their estates, whieh we hereby au-
thorize and empower lhe said eourt to inquire, hear and determine, by
inspection of the person, or such other ways and means by whieh the
truth may be best diseovered and known. And whereas it is by the
said act enacted, "that it shall and may be lawful for us by our said
charters or letters-patent respeetively to allow any per~on or persons
feeling aggrieved by any judgmenl, deeree, order or sentence of the
Court of Appeals of the colony of New South Wales, lo appeallhere-
from to us in our Privy Council, in su eh manner, within such time,
and under and subject to BU eh rules, regulations and limitations as we
by any sueh charters or letters-patent respeeti vely should appoint and
prescribe: Now we do hereby aireet, estahlish and ordain, that any
person or persons mayappea] to us, our heirs and sueeessors, in our or
their Pl'Ívy Council in such manner, within such time, and under and
subjeet to such rules, regulations and limitations as are hereinafter
mentioned, (thal is to say,) in case .any such judgment, decree, order,
or sentenee shall be given or pronouneed for or in respeet of any sum
or malter at issue aboye the amount or value of .:t2000 sterling, or in
case such judgment, decree, order, {)f sentence shall involve direetly
or indirectly any claim, demand or question lO or respecting property
or any civil rigbt, amounting lo or of the value of .:t2000 sterling,
01' in case the said Court of Appeals should by any such judgment,
deeree, order, or 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 aggriel'ed by any sueh judgment, deeree,
order or sentenee of the said Court of Appeals, may, within fourteen
days next after the same shall have been protlouneed, made or given,
apply 10 the said Court of Appeals by petition for leave to appeal there-
from lo us, our heirs and sueeessors, in our or their Privy Council;
and in case such ¡eave to appeal shall be prayed by the party or parties
who is or are direeted to pay any sum of money, or perform any duty,
the said Court of Appeals shalJ and is hereby empowered either to
direct that the judgment, deeree, order or sentence appealed from shall
be earried into exeeution, or that the exeeution thereof shall be sus-
pended pending the said appeal, as to the said eourt may appear to
be most eonsistent with real and substantial justiee; and in case the
said Court of A ppeal shall direet sueh judgment, d ecree, order or sen-
tenee to be canied into execution, the person or persons in whose fa-
vOllr the same shall be given, shall, before the execution thereot~ en ter
into good and sufficient security, to be approved by the said Court of




NEW SOUTII WALES-CHARTER OF JUSTICE. 637
A ppeals, for the due performance of ~uch judgment or order as we, our
heirs and succeSSOI'S, shall think fit to make thereupon; or in case the
said Court of Appeals shall direct the execution of any such judgment,
decree, order or sentence to be suspended pending the appeal, the
person or persons against whom the same shall have been given, shaU
in like manner and before any order for the suspensioll of any such exe-
cution is made, enter into good and sufficient security to the said Coul't
of Appeals for the due performance of such judgment or order as we,
our heirs or successors, shall think fit to make thereupon; and in aU
cases we will and require that security shall also be given by the party
or parties appellant to the satisfaction of the said Court of Appeals, for
the prosecution of the appeal and for the 'payment of all suchcosts as
may be award~d by us, our heirs and successol'S, to the party or parties
respondent; and ir 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 tite ap-
peal, and the party or parties appellant shall be at liberty to prefel' and
pl'osecute his, her ol' their appeal to US, oul' heirs and successors, in
our or theil' Privy Council in such manner and under such rules as are
obsecved in appeals made to us from our plantations or colonies: and
we do hereby reserve to ourself, our heirs and successors, in our or
theic Privy Council, full power and authority, upon lhe humble petition,
at any time, of any person or persons aggrieved by any judgment oc de-
termination of the said Court of Appeals, to refuse or admit his, her or
their appeal therefrom, upon such terms and upon such limitations, re-
strictions and regulations as we or they shall think fit, and to reverse,
correct or vary such judgment or determination as to us or them shall
seem meet: and it is our further will and pleasure, that in all cases of
appeal aIlowed by the said Court of Appeals, or by US, our heirs or
successors, the said Court of Appeals shall certify and transmit to US,
our heirs or successors, in our or their Privy Council, a trne and exact
copy of all evidence, proceedings, judgments, decrees and orders had
or made in such causl's appealed frbm, so far as the same have relation
to the malter of appeal, such copies to be certified under Ihe seal of the
said court. And we do furtber direct and ordain, tltat the said Su-
preme Court of New South Wales sball in all cases of appeal to us, our
heirs or snccessors, conform to and execute, or cause to be executed,
such judgments and orders as we shall think fit to make in the pre·
mises, in such manner as any original judgmenl, decree, or decretal
order, or other order or rule by the said Supreme Court of New South
Wales, should or might have been executed: and we do hereby strictly
charge and command all governors, cornmanders, magistrates, minis-
ters, civil and military, and all our liege sllbjects within and belongillg
to tite said colon y, that in ¡he executioll of tite several powers, jurisdic-




63B NEW SOUTH WALES-CHARTElt OF JUSTICE.
lions and authorities hereby granted, made, given or created, tl\l~y be
aiding and assisting, and obedient in all things, as they will answer
lhe contrary at their peril: Provided always, tha! nothing in these
presents cpntained, or any act which shall be done under the autho.
rity thcreof, 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 letters··patent for the
administration óf justice, civil and criminal, within the said colony
and tbe places now or at any time hereafter to be annexed thereto, as to
us, our heirs and successors, shall seem fit, in as full and ample a roan-
ner as if these presents had not becn made, these presents or anything
herein contained to the contrary thereof in anywise notwithstanding.
In witness, &c., the 13th day of October.


By Writ of Privy Seal.


Examined with the Record in the Petty Bag Office in the Court of
Chancery, the 22d day of April, 1834.


J. BENTALL.




G30


VAN DIEMEN'S LAND.


-


VAN DIEMEN'S LAND, or Tasmania, as the settlers call ¡t,
is an island situated between the parallels of 40° and 44°
south latitudc, and 144° and 149° cast longitude. In ex-
tent from no1'th 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
bl'ought 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, antl on the fou;th
by a channeJ, called Bass' Stl'aits, which separa tes it from
New Holland, and in which thel'e are sevel'al sinall
islands. The climate is fine and saluhrious, the extremes
of heat and cold being unknown. The púncipal towns
are Hobart Town, frequently called HobaI'ton, and Laun-
ceston, both of which are free warehousing ports. The
chief articles exported are bark for tanning, oil, train
and sperm, timber, whale fins, sheeps' wooJ, skins, corn,
and potatoes.


IlISTORY.


Tasman, the Dutch navigator, discovered this isJand
in 164~, and caBed it Van Diemen's Land, in honour of
the then Governor-General of the Dutch East Indies.
From that time down to 1773, when Captain Cook an-
chored there, only two 01' thrce navigators had visited it,
and they all supposed it to be part of New Holland.


MI'. 13ass, a surgeon in the royal navy, discovered, in
an expedition that he undertook in an open boat, the
channel called Bass' Straits, and Captain Flinders and
.Mr. Bass subsequently, in 1798, sailed through the strait


(1) ralkds VolU Dicmcn's Laud, p. 123.




64,0 VAN DIEMEN's LAND.
and round the island in a small decked sIoop. 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 transpOl'ted from England to New
South Wales, and had thel'e committed crimcs, fol' which
they were to be punishcd by bcing sent to a penal settlc-
ment of a lower grade. In 180j, Lieutenant-Governor
Collins, who had recently left England with a consider-
able party, haviug in view the formation of a settlemeut
at Port Phillip, on the southern coast of New Holland,
and had altered his destination, after ascertaining tlle un-
ntness of that port for bis ohject, arrived in the Derwent,
and took the command. Shortly after he had taken upon
himseIf the administration of affairs, he removed the set-
tlers from Risdon to the present site of Hobart Town,
which is now the seat of government. In the same ycar
a settlement was also effected by Colone! Patterson at
Port Dalrymple, and then the island was divided into two
counties, Buckinghamshire and Cornwall. Until 1813 no
vessels were aUo,wed to enter the harbours or ports, as
the' settlement was only considered a place of punishment
for the re-convicted feIons of the colony at New South
Walps. It was about this period that the offence of
busl'i-ranging first became prevalent, and it afterwards
grew to such an alarming height, that it was not unti!
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 montb 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, lIot exceeding in amount the sum of
.f50: suits for a larger amount were, as an 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 fhose suits that the Judge of the Su-
preme Court in January, 1819, went to Robart Town


(2) The Judge-Advocate admitted
persons lo practisc in Ihis court who


had nol received a legal education,
and tbese were caUed practilioners.


i




VAN DIEMEN'S LAND. 641
and there held a sitting. The next sitting was heId 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 monthIy meetings, held at Hobart
Town, hut the punishments the bench inflicted we~ ne-
cessarily often too Jenient; 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 of
300 Jashes. The investigation of offences committed by
free people was referred to the Criminal Court at Sydney j
and such was the reluctance of the settlers to quit their
property to carry on prosecutiollS, and to incur th_e ex-
pense, trouble and delay necessarily attendant upon a
long voyage, that compromises of crimes of the blackest
kind were frequently effected.


In the year 1819 the attention of emigrants was called
to the advantages the island presented, and since that
time the tide of emigration has set in so very steadily to
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 j it established a
court of justice having criminal, civil, equitable, and, to
a certain extent, ecclesiastical jurisdiction, called "The
Supreme Comt of Van Diemen's Land." This court was
aIso authorized to proceed by process of foreign attack-
ment against the effects of debtors absent from the co-
lony, and to declare insolvencies, and to distribute the
effects of insolvent persons in Van Diemen's Land.
Courts of Quarter Sessions and Courts of Requests 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 of N ew South
Wales, and thereupon the Lieutenant-Governor assumed
the powers of Governor, and an Executive Council, con-


(3) The population consisted, 3S 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 whom 3246


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; arid a Legislative
Council, consisting of seven persons nominated by His
Majesty, was called together for the purpose of making
Jaws for the government of the colony.


The 9 Geo. 4, c. 83, relates to this island as well as to
New· South Wales, and therefore tbe 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 an the authority
of a governor when thc Governor of N ew South Wales,
who is the Captain-General and Governor-in-Chief of
Van Dicmen's Land, (4,) is not present in the island.


The Lieutenant-Governor is the head of the Execu-
tive Council, and he is required to consult with the mem-
bers upon an matters of moment, but he is no~ 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 Council
consists at present of the Lieutenant-Governor, the Chief
Justice, the Colonial Secretary, the Colonial Treasurer,
and Lieutenant-Colonel Logan. (5)


The Legislative Council eonsists of not more than fif-
teen merr.bers, nor 1ess than ten, appointed by tbe 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 fol'
the peace, welfare, and good government of the colony,


(4) See ante, p. 606 anu note (6).
(5) This gentleman is the senior


officer of the military force stationed
in the island, but as the 63d regí-
rnent, df which he is eolonel, is
abou! to be removed, i! is probable


that his suceessor will be the colonel
of the next regiment which shaIl be
sent there. This is usuaIly the case
in other eolonies.


(6) Van Diemen's Land Alma.
rnack for 1833, p. 66.




VAN DIEMJD¡'S LAND. 643
such Iaws not being repugnant to the laws of Englanu. (7)
No law shaII be passed, unlcss the same shaIl 6rst be laid
by the Govel'llor before the Council, nor unless notice of
the general objects of it shall have be en sent by the Go-
vernor to one or more of the newspapers for insertion,
eight clear days at least before such law shaU 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 Govel'l1or shall consider that actual
danger wiII 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 competent to act llnless 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 cannot be-
come a law. In case the Governol', on the request of any
member, shall refuse to lay any bill 01' proposal for a law
before the Council, he shall, on a similar request, lay be-
fore the Couneil a copy of his refusal, with a copy of the
bill so refllsed 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 Comt to be enrolled, and after fomteen
days from the date of such enrolment it comes into opera-
tion, llnless the judges of the Supreme Court 8ha11 repre-
sent to the Governor that such law is repugnant to the
9 Geo. 11, c. 83, to the laws of England, to charters 01' to
letters-p~tent; the Governor shall then suspend such
law until he has brought it, togethe1' with the rep1'esenta-
tion, under the review of the Council; ane) if upon such
review the Governo1' and Council cannot see the force of
the judge's representation, and shall adhere to the pro-
posed law, a written notice of such resolution shall be
transmitted by the Governor to the judges, and such law
shall take effect and be binding until Bis Majesty's plea-
sure be known, any repugnancy 01' supposed repugnancy
notwithstanding. (9)


(7) 9 Oeo. 4, c. 83, s. 20 and 21.
(8) Sect.21.
(9) A dilference of opinion as to


the repugnancy of a Jaw exists al lhe
present time in Van Dicmen's Land,
thejudges having represenlcd the 615t


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 fur 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 expedient, (1)


5. The Governor and Council shaU not impose taxes
but fol' local plV'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 fol' re-
moving and preventing nuisances and
obstl'uctions therein," to be repugnant
to the law of England, in so far as it
renders liable to apprehension and
detention in a watch-house any ma.-
riners, however peaceable and or-
derly, who may be found in a public-
house, or in 'l. street, or public place
after the hour of nine at night and
before sun-rise. The judgcs in their
opinion stated, "that an enactment
restrictive of the liberty which the
law of England allows to the subjed,
or which deprives him of those safe-
guards for his liberty which the law
itself has prol ided, and whieh it eare-
fully maintains, Illllst be _ held to be
repugnant to the Iaw itself, nnless
called for by sorne neeessity or expe-
diency." The Governor placed the
representations of the judges before
the Council, but reeommended the
members to adhere to Ihe law, ob-
serving that he sbould be able to sholV
Ihem t hat i t was expediento " The
discipline of the eonvicts," he says,
"requires that they should, as mucl!
as possible, be detened fram ever evcn
attempting to escape trom the terri-
tory, whiel! of course can only be
accomplished by water; and it is mat-
ter 01' faet, of whieh 1 have been


assurcd by Ihe Poliee l\fagistrate, Iha!
these men, when endeavouring lo gel
on board of vessels for the purpose of
coneealment, are generally dressed as
mariners; it is therefore most import-
ant thal the coustables should always
be enabled to distinguish between
sailors and convicts in disguise as
such."


Caplain Forster, the Chief Police
Magistrate, says, .. 1 was glad to find
the clanse in the bill, knowing that
similm' restTictions to those imposed by
Ihe said seetion are in force in Eu-
rope." With due deference to Colo-
nel Arthur and to f:aptain Fors!er,
the case of el pediency is one fol' an
enactment against the conviets, and
not againsl the sailors. The kllow-
ledge if similar ,'estrietions may refer
to the Peninsula or perhaps }O'ranee,
where probably the gallant Caplain
served during the wars, but nol to
Great Britaiu or Ireland. The Cap-
tain may, however, have mislaken
the rcgulations of a ga rrison for an
aet of parli:unent, for Ihere can be
no doubt that any person al' any par-
ticular class of persons may be ex-
cluded from a garrison al any hour
cither of the day or uight. This how-
ever would not justify the enaetmen!.


(l) 9 Geo_ 4, C. 83, s. 24.
(2) Sect. 25.
(3) Secl.28.




VAN DIEMEN'S LAND. 645
Majesty in pursuance of the 9 Geo. 4, c. 83, shaU be
laid before both Houses of Pai'liamcnt within six wecks
after the commencement of each session. (4,)


8. The members of the Council are justices of the
peace by virtue of their office, and take the following
oath, viz. :_H I do swear that I will, to the best of my
judgment and ability, faithfully advise and assist the Go-
vernol' of the Colony of Van Diemen's Land and its
dependencies in all such matters as shall be brought
under my consideration as membel' of the Council of the
said colony. So help me God." (5)


9. In the case of death 01' l'esignation of a membel' of
Council, the Governor may appoint some person to act in
his stead until His Majesty's pleasure be known. (6)


The Governor and Council are empowered to raise
a revenue by taxation, but the particular local object to
which the money to be raised by every impost is to be
applied, must be specified by the act of thé Council di-
recting it to be levied. (7)


COURTS.


The Supreme Court.
The 4 Geo. 4" C. 96, was the fil'st act of parliament


authorizing His Majesty to issue letters-patent instituting
a Supreme Court in Van Diemen's Land, and under the
authority of that act a charter of justice passed the
gl'eat seal, bearing date 13th October, 1823; it became
necessary, howevcr, after Van Diemen's Land was de-
clarcd an indcpendent colony, and after the 9 Geo. 4,


(4) 9 Geo.4, c. 83, s. 29.
(5) Sect.30.
(6) Sect. 31.
(í) Sect. 25. 1'he 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 lOs. a gallon on
spirits, the produce and manufacture
of the United Kingdom or Ihe British
West I ndies; 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. ¡lot being (he
growth, produce 01' manufacture of


the United Kingdom. 1'hese duties
are Ilot exaclfd to the full extent, a5
the subjoined account of the. duties
now levied will show :-on brandy.
per gallon, lOs.; Hollands 01' Gcneva,
10,.; on rum, the produce of the
West Indian colonies, 7s. 6d.; on
Brilish gin, 7s. 6d.; and tcbacco per
lb. ls. 6d.; on al! merchandise of fo-
reign produce or manufacture, an ad
va/m'em dUly of i5 per cent. on im-
portation, with the exception of wine,
which is subjected to a duty 0\ il5
per cen!. Goods of British manu-
facture are no! ]jable to any duty.






646 VAN DIEMEN'S LAND.
c.83, came into operation, that a new charter should
issue, and accordingly on the ~th March, 1.831, 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 barristel's of five years' standing.(8) Its ju-
l'isdiction is as extensive within the colon y and its de-
pendencies as that of the Courts of King's Beneh, Com-
lUon 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 liable to be
challenged on behalf of eithel' plaintiff 01' defendant, but
reasons fol' chilllenge are to be assigned, and the judge is
to determine whether they are sufficient. If the as ses-
80rs do not agree on a verdict, thc judge has the casting
vote. Parties are not entirely precluded, however, frora
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 fol' the trial of trea-
sons, murders, feIonies and misdemeanours committed
within the isIand and its dependencies, as also within the
jurisdiction of the Vice-Admiral, and fol' the trial of·
offences, committed by British subjects belonging to Bri-
tish ships, in the islalids of Otahaite, New Zealand, and
in those of the Indian aneI Pacific Oceans. (1) Criminal
offences are prosecuted by information at the instance
and in the name of the Attol'lley-Genel'al of the colony,
and are tried by seven milital'y 01' naval officers as a jUl'y 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 act of the Legislative Coullcilpassed in the early
part of this yeal' (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,
lJUt there are no copies of thcse rules
in England.


(9) 4 Geo.4, c.96, s.9.
(1) Sce ante, p. 610 and note (6).
(2) Scc 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 eomt 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' pl'onounced for or in respect of
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 tlOOO.(4)


Circuit Courts.
Thesc 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
oecasionalIy held at Launeeston by one of the judges of
the Supreme Comt.


Courts of Quarter Sessions.
These courts derive theil' authority from an aet of the


Legislative Council passed in the year 1830. They
form courts of appeal from decisions of magistl'ates in
certain cases, and are empowered to try an offenees not
punishable with death. (5) They also have special juris-


(3) See ante, pp. 608, 611, and
the charter of juslice, post, 653. This
colony is within the diocese of Cal-
culta and archdeaconry of New South
Wales. A Rural Dean has lately
been appointed to reside in the co-
lany, but he has not power to hold
courts, or any special delegatian such
as ·was formerly committed to rural
deans.--See Burn's Ecclesiastical Law,
title Deaus 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
lhe inspeclion of the lives aud man-
uers of the clergy and people within
his district. In the Provincial Synod
of Convocation held al London, April


3, l571, it was oodained, that "the
archdeacon, when he halh finished his
yisitation, shall signify to the bishop
what clergymen he halh found in
eyery deanery so well endowed with
learning and judgment as to be wor-
lh y to instruct (he people in sermons;
and to rule and preside over others:
out of these Ihe bishop may choose
such as he will hayeto be rural deans."
Kcnw. 652,653; Gods. App. 7. In
England litlle remains of this dignity.


( 4) Tbe mode of proceeding on ap-
peal resembles that of other colonies,
and is staled al length in the charler
of j ustice, for whieh sea post, 653.


(5) See 9 Geo. 4, c. 83, s. 17,




648 VAN DIEMEN'::; LAND.
diction givcn to them by 6 Geo.4, c. 69, in offences com-
mitted by convicts. (6)


Courts qf 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
LegisIative Cauncil to appoint one court fol' ea eh of the
several police districts inta whieh the loeated part of the
colony is divided.(7)


Tlle Attorney-General.
This officer is invesíed with the power of a grand jury,


as it is to him that bilIs, 01' l'ather informations, are pre-
sented, and he either l'ejects 01' finds them. AH prasecu-
tions are cal'ried on as informations at his instance.


Barristers and Attornies.
The Judges of the Supreme COUl't are empowered to


admit persons, being barristers 01' advacates 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 COUl't in EngIand,
to act as wen in the character of barristers and advocates
as of proctors, attornies and soJicitors. (8)


LAWS. (9)
The laws of EngIand are recognized, as far as the cir-


cumstances of the colony will aHow, 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 aneI Legislative Council decide it, if it can be
referred to themj but if not, the judge determines whe-
ther 01' not the circumstances of the colony will admit of
its introduction.


The princi~al aets ofthe Imperial Parliament(l) speci-
(6) See ante, p.624.
(7) ílee 9 Geo.4, c. 83, s. 18.
(8) See ante, p. 622, note(3).
(9) See ante, p. 3 lo 16, on the


topie how fal' the colonies are 5ubject


lo Ihe law of tbe motber-counlry.
(J) Acts relaling lo our colonial


possessions gene rally , are referred lo
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 N ew South Wales,
p. 622, et seq. Both colonies stand in precisely the same
situation to England, being crown colonies, and place s to
which convicts may be transported.


ACTS OF THE COLONIAL LEGISLATIVE COUNCIL.


There are very few Acts of the Legislative Councíl
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
instan ce, the Rdman Catholic Relief Bill.


Registration qf Deeds.-The most important Act of
the Legislative Council is that for the Registration of
Deeds, &c. affecting lands, tenements, and hereditaments;
it was passed in the year 1827, (8 Geo. 4, No. 5,) and is
avowedly framed upon the 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 1'egistl'ation of aH conveyances and othe1' deeds,
wills, and devises, and other instl'u·ments in writing then
01' afterwards made 01' executed, and an judgments then
subsisting and unsatisfied, 01' afte1'wards obtained, by
which lands, tenements, 01' hereditaments within the co-
lony 01' its dependencies shalI 01' may be a~ected.


2. Deeds, &c. registe red 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 aH conveyances, &c., not re~istered, shall be deemed
to be null and void against bona fide pUl'chasers 01' mort-
gagees.-" Provided that nothing herein contained shal1
extend to 01' affect boná fide leases at rack-rent fol' 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 N ew South 'Vales 01' its deren-
dencies, to be registered within three months; ir made in
any other place, within twel've months. Wills 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 de pendencies ;
within three months, if he shall die in N ew South Wales
01' its dependencies; within twelve months, if he shall die
in any other place. Judgments to be registel'ed within
one month after the signing Ol' l'ecol'ding thel'eof. " 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 an respe~s as the same would have 01' be entitled to in
case this act had never been made, anything herein con-
tained to the contl'al'y 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 wilIs,) by some one of the
parties to the original deed 01' instrument; and (in case of
wills and devises) signed by sorne one of the devisees, (2) 01'
his, her, 01' their guardians 01' trustees; and (in case ofjudg-
m'ents) signed by the plaintiffs 01' plaintiff, 01' his, her, Ol'
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 01' Master in Chancery, or before
the Registrar of Deeds so to be appointed, who is hereby
authorized and empowered to adminiílter 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
01' secured; the time of the signing 01' entering up of the
same, and the sum of money boná fide due thereon; and
every memorial of any deed 01' conveyance, will, 01' other
instrument, and the particular nature and object thereof,
the names and additions of aH the parties to such deed,
&c., and of the devisor and devisee 01' devisees of such
wilI, and the names and additions of an the \vitncsses
thereto, and shall especialIy particularize and express the
lands, tenemcnts, and hereditaments affccted 01' intended
to be affected by such deeds, conveyances, will, 01' instru-


(2) If a testator dying in Van Die·
men's J.and should devi5e his property
to persons in England, il would ue


impossi~le for the dcvisecs to comply
with tbe provisions of this acto




VAN DlEMEN'S LAND. 651
ment, and the proper 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, or security affecting the same Iands,
tenements, and hereditaments, all such writings shall be
stated in one and the same memorial, in which memorial
it shalI 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 mortgages or judgments shall be paid or sa-
tisfied, the registrar sha11 make entry thereof on receiving
a certificate signed by the respective mortgagors or mort-
gagees, 01' 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 sha11 be opened
by the registrar and delivered to the executor.


11. If any clerk in the registrar's office shall alter any
document with thc view of faIsifying it, he shall be guilty
of felony.
1~. Certain fees to be taken by the registrar.


SCHEDULE A.-l. Date of will or instrument. ~. N ature
and object thcreof. 3. Names and additions of the par-
ties 01' devisors. 4,. N ames and additions of the witnesses
thereto. 5. Description of the lands or property affected.
6. Name of the district 01' place where situate. 7. Con-
sideration, and to whom aml how paid. 8. Any other
particulars that the case may requil'e.


Quat·ter Sessions Act.-An Act entitIed the Quarter




652 VAN DIEMEN'S LAND.
Sessions Act, passed in the year 1830, intl'oduced Courts
of Qual'ter Sessions, having jul'isdiction of equal extent to
the Coul'ts 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 fol' the severaI
poIice districts.


Jury Act.-The Jury Act, passed in 1830, prescribes
the course to be adopted in summoning juries, which the
9 Geo. 4, c. 83, s. 8, has partially allowed to be introduced
in the tria] of issues of fact.


Usury Laws.-The act called the Usury Laws Act,
passed in 1830, is a cm'ious aet, as it declares what is not
to be the Iaw, viz. that the usury laws of EngIand shall not
extend to this eolony. (3)


Administration of Justice Act.-An act with this titIe,
passed in 1831, is one of a stilI more remarkabIe charae-
ter, as it is not only repugnant but in direct opposition to
that part of the Charter oE Justice appointing a Puisne
Judge. The home government have however remedied
the objection by nominating another judge.


Inso/vent Debtors' Act.-This act was passed io the
month of February, 1834, and empowers the judges of
the Supreme Court to declare iosolvencies, and to au-
thorize the colleetion and distl'ibution of insolvents' es-
tates.


Parísn Register Act.-This act, passed by the Legis-
lative Couocil of N ew South "\Vales pl'evious to this set-
tlement being declared an iodependent colony, is conti-
nued in force here by an act oE the Council. (4)


(3) See ante, p. 91. (4) FOI tbis act see ante, p. 625.




( 653 )


VAN DIEMEN'S LAND-CHARTER OF JUSTICE,


4th March, 1831.


E'l:tract 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 \Vales
and Van Diemen's Land, and for the more effectual government thereof,
and f<?r olher 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 01' letters-patent under the great seal of the
United Kingdom of Great Britain and Ireland, to erect and establish
courts of judicature in New South 'Vales and Van Diemen's Land
respectively, which should be styled "The Supreme Court of New
South \Vales," 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 dale at 'Vestminster on the 13th day of October
in the year aforesaid, his said late Majesty, in pursuance and by virtue
of the said aet of parliament, 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, whieh should be called "The Su-
preme Court of Van Diemen's Land;" And whereas by a certain other
act of parliament passed in the ninth year of the reign of his said late
Majesty, intituled "An Act to provide for the administration of justice
in New South Wales and Van Diemen's Land, and for the more effec-
tual government thereof, and for other purposes relating thereto," it
was enacted, that it should be lawful for his said late Majesty, his heirs
and succe~sors, by charters or letters-patent under the great seal of the
United Kingdom of Creat Britain and Ireland, to erect and establish
courts of judicature in New South Wales and Van Diemen's Land re-
spectively, which should be styled "The Supreme Court of New South
Wales," and "The Supreme Court of Van Diemen's Land," and that
each of such courts respectively should be holden by one or more judge




654 VAN DIEMEN'S LAND-CHARTER OF JUSTICE.
or judges, not exceeding three, and should bave sucb ministerial or
other officers as should be necessary for the administration of justice in
the said courts respectively, and for the execution of the judgments,
deerees, orders and process thereof; and that the said judges should from
time to time be appointed by bis said late Majesty, his beirs and succes-
sors; and that the said ministerial and other officers of the said courts
respectively sbould from time to time be appointed to and removed
from their respe~tive offices in such manner as bis said late Majesty,
bis beirs and successors, sbould by such charters or letters-patent as
aforesaid direct: and it was thereby fnrtber enacted, that until his said
late Majesty should cause such charters or letters-patent to be issned
as aforesaid, tbe Supreme Courts of New South 'Vales and Van Die-
men's Land respectively, instituted by his said late Majesty's letters-
patent under the great seal, bearing date respectively tbe 13th day of
October, in tbe fourtb year of bis said late Majesty's reign, sbould re-
tain and exercise the several jurisdictions and powers in such courts
vested by bis said late Majesty's said Jast-mentioned Jetters-patent, so far
as tbe same might not be altered by that aet, as fullyand efrectuallyas if
such courts respecti vely had been instituted in virtue and in pursuance
of the said act: And it was tbereby enacted, that the said letters-patent
and all orders, acts, matters and things made and done in pursuance of
the powers and auth~rities vested in his said Jate Majesty in and by the
said act passed in the fourth year of the reign of his said late Majesty
should be oí the same force and efrect as if the same had respectively
been issued, made, done and performed by virtue and-' in pursuance of
tbe said aet of tbe ninth year oC bis said late Majesty's reign: Now
know ye, that we upon full consideration of tbe premises, and of our
especial grace, certain knowledge and mere motion, bave, in pursuance
of the said aet of parliament of the ninth year of the reign of his said
Jate Majesty, thought fit to grant, direct, ordain and appoint, and by these
presents do accordingly for ns, our heirs and successors, grant, direct,
ordain and appoint, that there shall be within our colony of Van Die-
men's Land a court, which shall be called "The Supreme Court of Van
Diemen's Land ;" and we do hereby create, direet and eonstitute 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 bolden by and befo re
two judges, of whom 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 Bucb judges shall respectively be barristers in England or Ireland
of not less tban five years standing, to be named and appointed from
time to time by us, our beirs and successors, by letlers-patent under our
or their great seal of the U nited Kingdom of Great Britain and IreJand;




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 saiel Supremc Court of Van Diemen's
Lanel shall have and use, as occasion may require, a seal bearing a ele-
vice and impression of OUI' royal al'ms within an exergue 01' label sur-
roulleling the same, with tbis inscription, "The Seal of the Supreme
Court of Van Diemen's Land ;" and we do hereby grant, ordain and
appoint, that tbe said se al shall be delivereu 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 Court of Van Diemen's Land
shall be capable of accepting, taking 01' performing any other office al'
place of profit or emolument, on pain that the acceptance oí any such
other office or place as aíoresaid shall be :md be deerned in law defacto
an avoidance of his office of judge, and the salary thereof sball ceas e
and be deemed to have ceased accordingly from the time of su<:h ac-
ceptance oí any such other office 01' place. And we do hereby consti-
tute and appoiot Out trust y and well-beloved John Lewes Pedder,
Esquire, to be the 6rst Chief Justice, anu our trust y and well-beloved
Alexander lWDuff Baxter, Esquire, to be the 6rst Puisne Judge of the
said Supreme Court of Van Diemcn's Land, and the said Jolm Lewes
Pedder and Alexander lWDuff 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 foUowing 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 uue execution of al! the powers and authorities which
are granted and committed to the said court by these our letters·patent:
Provided nevertheless, that no new olfice shall be created in the said
court unless the Governor or acting Governor for the time being of our
said colony shaU 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 an persons who shall and may be appointed to the several olfices
of Registrar or Master and Keeper of Records of the said Supreme
Court of Van Diemen's Land, or to any olfices in the said court,
whereof the duties sliall correspond to those performed by the Master,
Registrar, Prothonotary, or Keeper of RecoTds of any 01' either of
our Courts of Record al Westminster, shaU be so appointed by U!!,
our heirs, and successors, by warrant under our or their royal sign
manual; and that aU persons who shall or may be appointed to any
other olfice within the said Supreme Court of Van Diemen's Land shall
be so appointed by lhe 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 su.cces-
sors, shall hoId their respective offices during our and their pleasure;
and that the several officel's of the said court so to he appointed as
aforesaid by the .said Governor, shall be subject to be removed by the
said comt 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 su eh and so·many persons, having
been admitted banisters at law ol' advocates in Great Britain 01'
Ireland, or having been admitted writel's, altornies, 01' solicitors in one
of our courts at Westminster, Dublin, ol' Edinburgh, ol' having been
admitted as proctors in any Ecclesiastical Court in England, to act as
well in the character of barristers and advocates, as of proctol's, attor-
nies, and solicitors in the said court; and which persons, so approved,
admitted, and enrolled as aforesaid, shall be and arc hereby authorized
to appear and plead and act for the suitors of the said court, subject
always to be removed by the said court from their station therein, upon
reasonable cause; and we do declare that no other person or persons
whatsoever shall be allowed to appear and pIead, or act in the said Su-
preme Court of Van Diemen's Land, for and on behaIf of such suitors or
any of them: Provided aIways, and we do ordain and declare that in
case there shall not be a sufficient number of sueh barristers-at-Iaw, advo·
cates, writers, attornies, solicitors, and proctors within the said colony,
competent and willing to appear and act for the suitorsof the said
court, then and in that case the said Supreme Court of Van Dielúen's
Land shall and is hereby allthorized to admit so many other fit and
proper persons to appear and act as barristers, ad vocates, proctors, at- .
tornies, and solicitors, as may be necessary, according to su eh general
rules and qualifications as the said court shaIl for that purpose make
and establish: Provided, that the said court shaIl not admit any
person to act in any or either of the characters aforesaid, who hath been
by due course of law eonvicted 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 al 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'~ Land shall yearly, on the
first Monday in the month of January in each year, by warrant under
his hand and seaI, nominate and appoint sorne fit and proper person to
act as and be the sheriff for om .said eolony of Van Diemen's Land and
its dependencies for the year emuing, which sheriffwhen appointed shall,
as soon as conveniently may be, and before he shall enter upon his said
offiee, take an oath faithfully to execute his office, and the oath of allegi-
ance, before the Goverllor or acting Governor, who are hereby authorized
to administer the same; and such sheriff shall continue in slIch his QífiCE)




VAN DIEMEN'S LAND-CHARTER OF JUSTICE, 657
during the space of one whol~ year, lo be computed from the said first
Mon.day in the monlh of Janual'y, and unlil another shall be appoi"llted
and sworn into lIle said office; and in case sucb sheriff shall die in his
office, or depal't from our said co[ony of Van Diemen's Land, tben ano-
ther person shall, as 800n as convcniently may be after tbe deat" or
departure of sueh sberiff, be in like manner appointed and swor~ in as
aforesaid, and sball continue in bis office for the remainder of the year,
and until anotbH sberiff sball be dulyappointed and sworn into the
said office: And we do further order, dil'ect, and appoint that tbe said
sberiff and his successors shall by themselvcs, 01' their sufficient deputies
lo be by (bem appointed and du[y autborized J.mder their respectil'e
hands and seals, and for whom he and they sball be responsible during
his 01' theil' continuing in su eh office, execute, and the said shedff and
his said deputies are hereby authol'ized to exeeute all the writs, sum-
monses, rules, orders, warrants, commands, and proeesses of tbe said
Supreme Court of Van Diemen's Land and make return of tbe same,
togethel' with the manner of the execution thereof, to tbe Supreme
Court of Van Diemen's Land, and to receive and detain in prison all
such persons as shall be committed lo the custody of such sheriff by the
said Supreme Court ofVan Diemen's Land, 01' by the Chief Justice 01' the
Puisne Judge of the said court: And we do further authorize our
Governor or aeting Governor for the time being of the said eolony of
Van Diemen's Land, to re-appoint the same person to fill the office of
sheriff from yea\' to yeaT, if it shall appear to our said Governor 01'
acting Governor expedient so to do; so nevertheless as that sueh ap-
pointment shall be annualIy renewed and be not ever made for more
than one year: Provided nevertheless, and we do hereby require our
said Governor or acting Goveruor of our said colony for the time heing,
in the selection of any person 01' persons to fill the said office of
Sheriff of Van Diemen's Land, to conform himself lo sucb directions
as may from time to time be given in that behalf by US, our heirs,
and successors, through one of our or their principal Secretaries of
State: And we do further direct, ordain, and appoint, that whenever the
said Supreme Court of Van Diemen's Land shall direct or award any
process against the said sheriff, 01' award any process in any cause, mat-
ter, or thing·, wherein the said sberiff, on account of bis being related to
the parties or any of them, 01' by reason of any good cause of chaUenge
which would be allowed against any sheriff in Eugland, cannot 01' ought
not by law to exeeute the same, in every such ease the said Su preme
Court of Van Diemen 's Land shall name and appoint sorne other fit
person to execute and return lhe same, and the said process shall be
direeted 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 01'
compellable to go in person, 01' hy his officers or deputies, for the exeeu-
tion of any process of the said eourt; and when the process I)f the said
court shall be to be executed in any place 01' places beyond the limits
so to j,e fixed, we grant, ordain, and direct that the said Supreme Court
ofVan Diemen's Land shall, upon mOlion, direct by what person 01' per-
sons, and in what manner such process shalJ be exeeuted, and the
terms aad conditions which the party, at whose iustauce the same shall
he issued, shall enter iuto, in order to prevent any improper use 01'
abuse of the process of the said court, and the said sheriff shall and he
is hereby required to grant his special warrant 01' deputation to such
person or persons as the said court shall direct fol' the execution of such
process; and in that case we direct and declare that the said sheriff,
his executors, or administrators, shaJl not be responsible or liable for
any aet to be done in or iu any way respecting the execution of such
process, under and by virtue of such special warrant, and that any per-
sou 01' persons being aggl'ieved under or by pretence of such special
warrant, shall and may seek their remedy uuder any security which
may have been direeted to be taken upon the oecasion, and which the
said court is hereby authorized to direct to be taken. And whereas in
the said last-mentioned Act oC Parliament, it is enacted tbat the said
Supreme Comts respecti vely sball be courta of ecc1esiastical jurisdiction,
and aball bave full power and authority to administer and execute with-
in New South Wales and Van Diemen's Land, and the dependencies
thereof respectively, such ecc1esiastical jurisdiction and authority as
shall be committed to the said Supreme Courts respeetively, by OUT
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 comt of ecclesiastical jurisdic-
tion, with full power to grant proba tes, under the seal of the said court,
of the last wills and testaments of all or any of the inhabitants of the
said colony and its dependencies, and of aH other persons who shall die
and leave personal effects within the said colony and its deperidencies,
and to commit letters of administration, under the seal of the said court,
of the goods, chattel~, credits, and all other effects whatsoever of tbe
persons aforesaid who sha1l die intestate, or who ahall not have named
an executor resident within the said colony and its dependencies, or
whe-'e the exeeutor, being duly cited, sha1l not appear and sue forth
SUCil probate, annexiog the wi1l to the letters of administration, when
such persons sban have left a wi\l without naming any exeeutor 01' any
person for executor who sha1l theu be alive and resident within the said
colony and its depcndencies, and who, being duly cited therentJ!o, will
appear and sue forlh a probatc thereor, and lo scquestel' the goods and
chattcls, credits 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, require, take, bear, examine, and
allow, and if occasion req uire to disallow and reject, tbe accounts of
tbero in such manner and forro as lIlay be used in tbe diocese of Lon-
don, and to do an otber tbings wbatsoever needfuI and necessary in that
behalf: l'rovided always, and wc do hereby authorize and require the
said court, in sucb cases as aforesaid, where letters of adroinistration
sha11 be committed with the wiU 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 ¡evoke lhe same, and to
grant probate of tbe said will to sucb executor whenever he shall 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
lawfuI 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 shan then be residing
within the jnrisdiction of the said court, or, being duIy cited, shan not
appear and pray the same, to the registrar of the said court, or to such
person 01' persons, whether creditor or creditors or not of the deceased
person, as tbe court sban see tit: I'rovided 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 the deceased
person shan be entitled to ""ithin the said colony and its dependencies :
And we do hereby further enjoin and require that every person to whom
such lelters of administration shall be committed, shall, before the
gl'~ntiDg thcreof, give sufficient security by bond, to be entercd into to us,
our heirs, and successors, for the payment of a coropetent sum of money,
with one, two, 01' more ablc sureties, respect being had in the sum therein
to he contained, and in the ability of the sureties, to the value of lhe es-
tates, credits, and effects of the deceased, which bond shall be deposited
in the said COUl't 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 shall be to the following
effect: "That if lhe above-bounden administrator of the goods, chattels,
and effects of the deceased do make 01' cause lo be made a true and
perfect inventory of all and singular the goods, credits, and effects of the
said deceased which have 01' shan come to the hands, possession, or
knowledge of him the said administrator, or to the hands or possession
of any olher person 01' persolls for him, and the same so made do ex-
hibit into the said Supreme Court of Van Diemen's Land at or befo re
a day therein to be specified, and the same goods, chattels, credits, and
cffects, and an other the goods, chattels, credits, and efrects of the de-
ccascd al the time of his death, or which al any time afterwards shaU


uuZ




660 VAN DIEMEN'S LAND-CHARTER OF JUSTICE,
come to the hands 01' possession of such admini~trator, 01' to the hands
01' possession of any othel' person 01' persons fol' him, shall well and
truly administer according to law, and furthel' shall make 01' cause to
be made a tl'ue und just account of his said administration at 01' before
a time therein to be sp·ecified, and afterwards from time to time as he,
she, 01' they shaU be lawfuUy required, und aU the rest und l'esidue of
Ihe said goods, chattels, credits, and effects which shall be found from
time to time remaining upon the said administration account, the sume
being first examined and allowed of by the said Supreme Court of Van
Diemen's Land, shall and do payand dispose of in a due course of
administration, 01' in such manner as the said court shall direct, then
this obligation to be void and of none effect, 01' else to be and remain
in fuU force and virtue ;" and in case it shall be necessary to put the
said bond in suit fol' the sake of obtaining the effect thel'eof fol' the
benefit of such person 01' persons as shall appear to the said court to he
interested thel'ein, such person 01' persons from time to time giving sa-
tisfactol'Y secul'ity fol' paying all such costs as shaU arise from the said
suit, 01' any part thereof, such person 01' persons shalI, by order of the
said court, be allowed to sue the same in the name of lhe Attorney-
General fol' 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-
powel' 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 lettel's of administration
shall be granted by the said court, shall from time to time, until the
effects of the deceased person shall be fully administered, pass their
accounts relating thereto before the said comt; and in case the effects
of the deceased shall not be fully administered within the time for that
purpose to be fixed by the said court, then, or at any earlier time, if
lhe said court shall see lit so to direet, the person or persons to whom
such probate ol' administration shall be granted, shall pay, deposit and
dispose of the balance of money belonging to the estate of the deceased
then in his, her Ol' their hands, and aH money which shall afterwards
come into his, her Ol' their hands, and also aH precious stones, jewels,
bonds, bills, .and securities belonging (o the estate of the deceased, in
sueh manner and unto such persons as the said court shaU direct fol'
safe custody; and we require that the said court shall from time to time
make such order as shaU be just for lhe due administration of such assets
and for the payment or remittance thereof 01' any part thereof, as occasion
shall require, to or for the use of any person Ol' persons, whether resident
Ol' not resident in the said colony and its dependeneies, who may be enti-
tled thereto or any part thereof as creditors, legatees or next of kin, Ol'
by any other right .01' tille whatsoerer. And we further order und direet,




VAN DIEMEN'S LAND-CHARTER OF JUSTICE. 661
that il shall be htwful for the said court to allow to any executor or ad-
ministrator of the e!fcets of any deceased person (except as herein men-
tioned) such commission or per centage out of their assets as shall be
just and reasonable for their pains and trouble therein: Provided
always, that no allowance whatever shall be made for the pains and
trouble of any cxecutor Of administrator who shall neglect to pass his
account3 at such time or to dispose of any money, goods, chattels or
securities wilh which he shilll be chargeable, in such manller as in pur-
suance of any general 01' special rule 01' order of the said court shall be
requisite; and moreover every such executor or administrator so neg-
Iccting to pass his aceounts, or to dispose of auy such money, goods,
chattels or securities with which he shall be chargeable, shall be eharged
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 \'e been in his hands, whether he shall or shall not make interest
thereof. Alld we do herebyauthorize the said Supreme Court of Van
Diemen's J"and to appoint guardians and keepers of infants and their
estatcs aeeording to the order and course observed in that part of our
United l"ingdom calIed England, and also guardians and keepers of the
persons and estates of natural fools, and of such as are or shall be de-
privcd of their llndel'standing or reason by the aet of God, so as to
be unable to govern themselves or their estates, which we hereby au-
thorize and empower the said eourt to inquire Cinto,] hear and determine,
by inspection of the person, or sueh 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
heil's and sucees5Cirs, 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 such time, and under and subject to
such I'ules, regulations aud limitations as are hereinafter mentioned,
that is to say, in case any such judgment, deeree, order, or seuteuce
shall be given or pronouneed for or in respeet of any sum 01' matter
at issue above the amount 01' value of ;:[1000 sterling,or in c~se such
judgment, decree, order, or sentenee shall involve directly or indirectly
any claim, demand or question to 01' respecting property or any civil
right, amounting to Of of the value of ;:[1000 sterling, the perSOIl or
persons feeling aggrieved by any such judgment, deeree, order, 01' sen-
tenee, may within fourteen days next after the same shall have·been
pronounced, made or given, apply to the said court by petilion 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
Ihe pa¡'ty or parties who is or are directed to pay any such [1] sum of
money, or perform any duty, the said court shall and is hereby em-
powered either to direct that the judgment, decree, order 01' sentenc.:e




662 VAN DIEMEN'S LAND-CHARTER OF JUSTlCE.
appealed from shall be carried into execution, or that Ihe execution
thereof shall be suspended pending the said appea!, as to the said court
may appear to be most consistent with real and substantial justice; and
in case the said Gourt shall direct such judgment, decree, order or sen-
tence to be carried into execution, the person 01' persons in whose fa-
vour (he same shall be given, shall, before the execution thereof, enter
into good and sufficient security, to be approved by the said courl,
for the due performance of such judgment or order as we, our
heirs and successors, shall think fit to make thereupon; or in case the
said court shall direct the execution of any such judgment, decree,
order, or sentence to be suspended pending the appeal, the person
or persons against whom the same shall have been given, shall in
like manner and before any order for the suspension of any sueh exe~
cution is made, enter into good and sufficient security to the said
court for the due performance of such judgment or order as we, our
heirs and successors, shall think fit to make thereupon; ami in al!
cases we will and require that security shall also he given by the
parly or parties appellant to the satisfaclion ofthe said court for the
prosecution of the appeal and for (he payment of all such costs as
may be awarded by us, our hcirs and successors, to the party re-
spondent; and ir such last-mentioned security shall be entered into
within three months from the date of such petition for leave to ap-
peal, then, and not 1ltherwise, the said court shall allow the appeal,
and the party or parties appellant shall be at liberty to prefer and
prosecute his, her or their appeal to us, our heirs and successors, in
our or their Privy Council in such manner and under such rules as are
observed in appeals made to lIS from our plantations Ol' colonies: and
we do hereby reserve to ourself, our heirs and successors, in our or
their Privy Council, ful\ powel' and authority, upon the humble petition,
at any time, of any person or persons aggrieved by any judgment or
determination of the said court, to refuse or admit his, her or tbeir
appea! therefrom, upon such terms and upon such limitations, restric-
tions and regulations as we or they shall think fit, and to reverse,
correet or vary such judgment or determination as to us or them shall
seem meet: and it is our further wil\ and pleasure, that in al\ cases
of appeal allowed by the said court, or by US, our heirs or succes-
80rs, the said court shal\ certify and transmit to us, our heirs, 01"
successors, in our or their Privy Council, a true and exact copy of al!
evidence, proceedings, judgments, decrees and orders had or made in
such cases appealcd, so far as the same have relation to Ihe matters of
appea!, such copies to be certified ,under the seal of the said court.
And we do further direct and ordain, that the said court shall in
all cases of appeal to us, our heirs or successors, conform to and execute,
or cause to be exeeuted, such judgments and orders ás we shall think




VAN DIEMEN'S LAND-CHARTER OF JUSTICE. 66'3,
lit to make in the premises, in su eh manner as any original judgment,
deeree, or decretal ordcr, or other order or rule of (he said court of Van
Diemen'sLand, should or might have bccn executed: and we do hereby
strictIy charge and command all governors, commanders, magistrates, mi-
nisters, civil and military, and aH our liege subjects within and belong-
ing to the said colony, that in the execution of the several powers, j uris-
dictions and autllOrities hereby granted, made, given or created, they be
aiding and assisting, and obedient in all things, as they will answer


• the contrary at their peril: Provided always, that nothing in these
presents contained, or any act which shall be done under the autho-
rity thereof, shall extend or be construed to extend to prevent us, our
heirs and successors, to repeal these presents Uf any part thereof,
or to make such further or other provision by letters-patenf for the
administration of justice, civil and criminal, within the said colony
and the place s now or at any time hereafter to be annexed thereto, as to
us, our heirs and successors, shall seem fit, in as fuIl and ample a man-
ner as if these presents had not been made, these presents or anything
herein contained lo lhe contrary thereof in anywise notwithstanding.
In witncss, &c., the 4th day of March.


By Writ of Privy Sea!.




( 6640 )


WESTERN AUSTRALIA.
,-


Tms colony, which is fl'equently called thc Swan Rivel'
Settlement, is situated on the western coast of New Hol~
land, between the parallels of 31 0 amI 36° south latitude,
and 115° and 119° cast longitude. It comprehends thc
settlement on the banks of the Swan Rivel' as well as
those on the shores of Hardy's lnlet and King George's
Sound. The towns are Perth, the 'seat of government,
Freemantle, Augusta, aneI Albany.


HISTORY.


The Swan Rivel' was discovered by VJaming in 1697,
but little notice was taken of it until1827, when Captain
Stirling, in a vessel called the Success, surveyed the adja~
cent coust amI the banks of the rivcl'. 'rhe flattel'ing
accounts that Captain Stirling und 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) Accordingly thel'e was issued from the Colonial
Office onthe 5.th December, ISQ8, the following "'rerms
for SettIers desil'ouS of proceeding to the Swan Rivel'."-
H AIthough it is the intention of His Majesty's.govern~
ment to form a settlement on the western coast of Aus~
traJia, the government do not intend to incur any expense
in the conveyance of settlers, 01' in supplying thcll1 with
necessaries after theil' arrival. Such persons, however, as
may be prepared to procecd to that country at their own
cost befo re the yeal' 1829, in parties comprehending a
proportion of not less than five female to six male settIers,


(1) The settlcment at King George 's
Sonnd was effected sorne time previ-
onsly, but it was then only a penal
settlement to the other Australian seto


tlements. Since King George's Sound
has been adderl to the Swan Hiver
Settlement the convic ts ha ve been re·
moved.




WESTERN AUSTRALIA. 665
will receive grants of land in fee-simple (free of quit l'ent),
proportioned to the capital they may invest upon public
or prívate objects in the colony, to the satisfactiol1 of His
Majesty's government at home, certified by the Super-
intendent 01' other officer administering the colonial go-
vernment, at the mte of 4,0 acres for every sum of ,ES so
invested, provided they give previous security; first, that
aH supplies sent to the colony, whether of provisions,
stores 01' other articles which may be purchased by the
capitalists there, 01' which shall have been sent out for
the use of them 01' theil' pal'ties on the l'equisition of the
Secretary of State, if not paid for on delivery in the co-
lony, shall be paid fol' at home, each capitalist being to
be held liable in his propol'tion; and secondly, that in the
event of the establishment being broken up by the Go-
vernol' 01' Superintendent, aH persons desirous of return-
ing to the British islands, shall be cOllveyecl to their own
homes at the expense of the capitalists by whom they
may havc beell taken out. The pa~sage of labouring
persons, whethel' paid for by tbemselves 01' others, 01'
whethcl' thcy be male 01' female, providecl the propol'tion
of the sexes before mentionecl 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 01' .1'15, that is, of 200 acres
of land for the passage of cyery such labouring person
over ana aboye any othe1' investment of capital.


"Any land thus granted, which shall 110t have been
brought into cultiYation, 01' otherwise improved 01' re-
claimed from its wild sta te, to the satisfaction of the go-
Yel'nment, within twenty-one years from the date of the
grant, shall at the end of twenty:"one years l'evert abso-
lutely to the cl'Qwn,"


Other terms were subsequently issued from the Colo-
nial Office, cxtending to settlel's, who should arrive be-
fore the end of 1830, the bonnt¡r of a free gl'ant of land
according to the amount of capital 'they should be pl'e-
pared to invest; the terms provided, however, that "any
land so allotted, of which a fail' propol'tion, at least one-
foul'th, shall not have been brought into cultiv~tion, 01'
otherwise improved to the satisfaction of the local govern-
ment, within thl'ee yeal's fl'om the date of the license of
occupation, shall 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 UD-
improved state will revert absolutely to the crown. And
in every grant willbe contained a condition, that at any
time within ten yeal's from the date thereof the govern-
ID~nt may resume, without compensation, any lana not
then actually cultivated or improved as before mentioned,
which may be required for l'oads, canals, 01' quays, 01' for
the site of public buildings"


In the ye"ar 1829 Captain Stirling, the Governor, and
the first settlers lanaed on the Swan River; and settlers
continued to arl'ive froID that time to the expiration of the
year 1830, when the number is supposed to have
amounted to 3000. The population was subsequently
:a:educed to about 2000, as many persons quitted the place,
not having sufficient firmness to face the difficulties which
always present themsclves in founding a new colony.
The remaining settlers have now surmounted those diffi-
culties, and smootbed the way for future adventul'ers.


GOVERNMENT.


The 10 Geo. 4, c.22, entitled "An Act to provide until
tbe 31st December, 1834, for the government of His Ma-
jesty's Settlement in Western Australial 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 fol' His Majesty, his heirs and succes-
sors, by any order or ol'del's to be by him 01' tbem maae,
witb the advice of his 01' tbeir Pl'ivy Council, to make,
ol'dain and (subject to such conditions ana restrictions as
to bim 01' them shall seem meet) to authorize and em-
power any three 01' more persons resident and being
within the said settlement- to make, ordain and establish


, all such laws, institutions and ordinances, ana to consti-
tute such courts and officers as may be necessary for the
peace, order and good government of His Majesty's sub-
jects and others within the said settlement."


Notwitbstanding this act received the royal assent as
early as the 14th May, 1829, no charter, or order in
council in the nature of a charter, was promulgated
until the 1st Novembcr, 1830, when His Majesty with the
advice of his Privy Council, and in plll'SUanCe and exer-
cise of the authority in him vested by the said act, 01"-




WESTERN AUSTRALIA. 667
dered that the Governor for tlle time being, 01' the officer
administering the government, the senior officer of the
land forces next in command, the Colonial Secretal'y of
the territol'Y, the Surveyor-Genel'al, and the Advocate-
General, so long as they should be resident in the settle-
ment, 01' any thl'ee oi' them, oi' whom the acting Governor
was to be one, should be a Legislative Council, to make
the necessary laws and ol'dinances, amI to' constitute
coul'ts and officel's fol' the government of the colony. (2)


CIVIL JUDICATURE.


Thc Govcl'nor und Legislative Council, by u law
(2 Wm. 4, No. 1,) passed 10th February, 1839Z, esta-
blished a court of civil judicature, called "The Civil
Court ofWcstern Australia," and constitutcd it a Court
of Record, having jurisdiction in all pleas and in aH cases
as fulIy and amply in the settlement as the Courts of
King's Beneh and Common Pleas and Exchequer have in
England; and also gave it the power to hear and deter-
mine questions of idiotcy and lunaey, and to appoint
guardians and committees over the persons and ptopel'ties
of infants, idiots, and lunatics, and to grant pl'obates oi'
wills and letters of administration. A party feeling ag-
grieved, however, by a decision of the court in cases
where the thing in dispute exeeeds oflOO, may appeal to
the Governor and other members of the Executive Conn-
cil, whose judgmefit is nnal, amI is to be executed by the
court as a jndgment pl'onouneed by the court itsclf.


MeslIe Process.-The 8th section of the same colonial
act pl'ovides that no arrest shall be allowed on mesne
process, anel that aH pl'ocess of execution shall be di-
rected against pl'operty only, anel not against the person,
except in cases whel'e the debto).' is abont to leave the
colony, when, on canse stated on affidavit, the Commis-
sioner of the Court may issue a wal'l'ant fol' his arrest;
but in such casea the party at whose instance the debtol'
has been al'l'ested must pl'osecute his suít with due dili-
gence, or the commÍssÍoner may on petition discharge the
pal'ty arrested.


The pleadings are oral, and cases involving amounts
under of~O are detel'mined without a jury, but othel'


(2) Seo this Order in Council, post.




668 WESTERN AUSTRALIA.
cases are tried before a jury 01' not, at the option of
either pal'ty. 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 undel'
the 'seal of the colony, and holds his office during good
behaviour, but may be dismissed by the Governor and
Executive Council by an order also under the seal of the
colony.


The officers of the comt are a Registrar, Messenger
and Bailiff, attendant upon the court, and two Bailiffs re-
sident in distant parts of the settlement.


Court qf Quarte1' Sessions.
'rhis court is constituted by a local act, and has powel'


to hear '<lnd determine all fclonies, capital 01' otherwise,
perjuries~ fol'geríes and misdemearwrs; but in cases in
which death is awarded by the conrt, the seutence is re-
quired to be approved of by the Executive Couneil before
it is earried into effeet. The Goyernor appoints the
chairman of the eourt by warrant.


Vice-Admiralty Court.
This eourt is instituted by letters-patent, the King's


warrant for which bears date the l;o¿th day of November,
1831. The comt has jurisdietion to the same extent as
the Courts of Vice.Admiralty in other colonies, excepting
that it cannot adjudicate in prize causes.


LAWS.


The laws of England are gene rally adopted in the ad-
ministration of justice, but none of the acts of the British
Legislature relating speeifieally to N ew South Wales and
Van Diemen's Land extend to this colony. (3) .


Acts qf the Legislative Council.
~


The principal acts of the Legislative Council, besides
those constituting the Civil Court and Court of Qual'ter
Sessions, are the acts for regulating juries and the office
of sheriff, for sccuring debts due to the crown, for regis-


(3) 'fbe mercantile inteJests of .England require Ihe 54 Geo. 3, c. 15, to be
extended there. '




WESTERN AUSTRALIA. 669
tering deeds, &c. and for facilitating und simplifyíng the
transfer of real property.


2 Wm. 4<, (No. 3). An Act for regulating the constitu-
tíon of Juries and the office of Sheriff. (Passed 2d March,
1832.)


The 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 the ages of l21 and 60, and pos-
sessed of a real estate of the value of .1:50, or 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 than
eighteen nor more than twenty-four persons "of the
greatest repute and substance."


The Governor may (s. 23) appoint a sheriff annually
for the colony, and re-appoint him if expediento If the
sheriff is incompetent to act on account of any good
ground of challenge, the comt may award the process to
some other persono


2 Wm. 4, (No. 5). An Act to secure the paymeht of
debts due to the Crown. (Passed 6th March, 1832.)


This act 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
ol' the Civil Court with a list of debtors to the crown; and
whenever ti prívate person recovers judgment agaínst any
such debtor, the clei'k is to give notice of a stay of exe-
cution on such judgment, and then to 'caU on the debtor
to show cause why execution should not issue for the
crown. The court may hear the question and award
execution, either to the crown 01' the creditor.(4) .


2 Wm. 4, (No. 6). An Act to p)~event secret and frau-
dulent conveyances, and to provide means whereby the
title to real property may be ascertained. (Passed 6th
March, 1832.)


Enacts, (s. 1) that from and after the passing of this
:lct there shall be established at Perth a public office
for the registration of deeds, conveyances amI other in-
struments, wills and judgments, in manner hereafter


(4) This law making lhe debtor the tha~ ever issued even from a colonial
guardian of the rights of the creditor is legislative council.
one of the most absurd enactments




670 WESTERN AUSTRALIA.
mentioned; and that a fit and proper person shall be
appointcd Registrar thereof by his Excellency the Go-
verDor by warrant under his hand and the public seal of
the colony; and that from aneI after the establishment of
such ofllce, 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, willsand judgments, any lands,
tenements 01' hereditaments in W ~stern Australia 01' its
dependencies now are 01' shall ·01' muy be hereafter af-
fected,) may be ente red and registered in the said office.


The second section directs, that an 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 registl'ation, and
that aH judgments, deeds, com"eyancesor ini'trumentsin
writing as last aforesaid, and all filture devises which shall
not be registered in pursuance of this act, shaIl (as against
any subsequent bonttfide purchaser 01' mortgagee of the
same lands, tenements 01' hereditaments for valuable con-
sideration,) be absolutely nuU anei void. to all intents and
purposes, provided that nothing herein contained shaU
extend to boná fide leases at rack-rent for any term not
exceeding fourteen years.


The third section enacts, that an judgments, deeds,
wills, conveyances 01' instruments in writing hereafter ob-
tained, made 01' executed, which shall be duly registered
within the respective times next mentioned, (that is to
say,) aU deeds, conveyances and other instruments in
writing (except wills) which (if executed in Western Aus-
tralia 01' its dependencies) shaU 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 l'espectively; ami aH wills which (if the devisor
die in "\Vestern Australia 01' its de pendencies) shall be l'e-
gistered within one month, 01' which (if the devisor die
in any othe1' place) shall be registered within twelve
months after the decease of evel'y devisor respectively;
and all future judgments which shall be registered within
one month after the entry 01' recorcling thereof, shall seve-
rally be in like manner entitled to priority, and sball 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 ma y be made (s. 1) of heredita-
ments situate within the colony by bargain and sale with-
out livery of seisin, attornment 01' other ccremony.


Simple mortgages muy be effectcd by the deposit of
deeds, 01' by agreement, (s. !2); and on non-payment of
the mortgage-money, the mortgagor shall convey the fee.


A married woman may (s.4) pass her interest in lands
by an instrument by her jointly executed with her hus-
band, before a commissioner 01' justice of the peace; amI
tenant in tail (s. 6) may bar the entail by a deed executed
before the like persons. Any other interest that in Eng-
land would require to be passed by fine 01' recovel'y, 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
magist1'ate of any other city, bOrollgh 01' town corpo1'ate,
shall have tIJe same cffect as if cxccuted before a com-
missionel' 01' justice of the peace in the colony.


-


W,ESTERN AUSTRALIA-ORDER IN COUNCIL.


At the Court at Saint James's, the 1st of Novembcr, 1830;
Present, The King's Most Excellent Majesty in Council.


WHEREAS by a certuin act of parliament passed in the tenth year of the
reign of his h::te Majesty King George lhe Fourth, chapo 22, intituled
" An Act to provide until the 31st day of December, 1834, for the go-
vernment oí His Majesty's Settlemcnls in Western Australia, on the
western coast of New Holland," it is enacted, "that it shall and may
be Iawful 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 such conditions and res tric-
tions as to him or them shall seem meet), to authorize and empower
any three 01' more persons resident and being within the said settle-
ments, to make, ordain and cstablish all such laws, institutions aneI
orrlinunces, und to constitute such courts und oflicers us may be ncces-
sary [01' the peace, oruer and good government of Bis Majesty's su b-




6]2 WESTER~ AUSTRALIA-ORDER IN COUNCIL •
. jects amI oth'ers within the said settlements: provided that al! such orders
in council, and al! laws and ordinances so to be made as aforesaid,
shall be laid before both Houses of Parliament as 800n as eonveniently
may be aAer the making and enactment thereof respectively;" His
Majesty dolh therefore, with ¡he advice of his Privy Council, and in
pursuance and exercise of the authority in him vested by the said aet,
order, and it is hereby ordered, that the Governor for the time being of
the said settlements of Western Australia, 01' the officer administering
the government thereof,· the senior officer of His Majesty's land fOl'ces
next in command, the Colonial Secretal'y of the said territory for the time
being, the Surveyor-General thereof for the time being, and the Advo-
cate-General thereof for the time bcing, so long as they shal! respec-
tive1y be resident in the said sett1ements, 01' any three of them, of whom
the acting Governor to be one, shall have authority and power to make,
ordain and establish a11 such laws and ordinances, and to constitute such
courts and officers as may be necessary for (he peace, order and good go-
vernment of Ris Majesty's subjccts and others within the said settlements;
which power and authority shall nevcrtheless be so exer~sed, subject to
the following conditions and restrictions, that is to say, lhat all such
laws and ordinances as aforesaid, sha11 by the said Governor 01' officer
administering the government, be with al! convenient expedition trans-
mitted to His Majesty for his approbation or disallowance, through oue
of his Principal Secretaries of State; and that the same Ol any part
thereof shall not be in force withiu lhe said settlement after lIis Ma-
jesty's disallowance thereof, or of any of them, 01' of any· such part
thereor, or of any of them as aforesaid, shall be made known therein;
and further, that no such law 01' ordinance shall be made unless lhe
same shall have lirst been proposed by the said Governor or ofticer
administering the government; and further, that in making all such
laws and ordinances, the said several persons shall and do conform to
all such instructions as Rís Majesty shall from lime to time be pleased
to issne for that purpose; and further, that no court of juslice be con-
stitutea by the severa1 persons aforesaíd within the saia sett1ements,
exccpt by a law or ordinance to be by them fol' lhat purpose made,
under and subject to lhe cOllditions una reslrictions aforesaid. Ana the
Right I10110urable Viscount Goderich, one of Bis Majesty's Principal
Secretaries of State, is lo give the necessary dil'ectiolls hercin accord-
ing1y,


",," Since Ihe manuscript of the chaplel's on the Australian Settlements was
placed in Ihe prinler's hands t\Vo bilis have been brought inlo the Housa of
Commons, bul have nol yct beell passe(l; the Olle is an Act for Establishing a
Criminal Court in Norfolk Island, und ¡he olher for founding a Settlement on
the shores of Spencer's Uulr, lo be called r, Southern Australia."




· ( (373 )


BRITISH POSSESSIONS
IN


EUROPE.


G IBRALT AR. (1)


-


GIBRALTAR, in Iongitude 5° 19' west, Iatitude 36° 6' north,
is a town ana promontory of Spain in the possession of
Great Britain, aml is situated in the provil1ce of Andalusia
in the straits which unite the AtIantic with the Mediterra-
nean. The promontory was the MOLlnt Cal pe of the al1ci-
ents, and one of thc pilJars of Hcrcules. 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. Jt stands
at the eastero extremity of the straits to which it gives
its name, ana is distant about six leagues from the African
shores. The bay is spacious, and aflords a safe and con-
cOllvenienl station fol' ships, and the water is so deep that
large vessels can come close to the quay. The town
stand s 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 fol'


.u commercial pmposes 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 heId by them ever since, although besieged in


(1) On the queslion whether Gib· (2) Mr. M'CulJoch 'says 16,500.
ralter is to be considered a eolony, see Diet. of Cornrnerce, arto Gibraltar.
ante, p. 1, note (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, "tbat the petitioners con-
cerned in trade were greatIy prejudiced already, and
greatly discouraged to continue tbe 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 MI'. 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 iri. their report to the Lords CoÍD-
missioners of Tradc and PIantations, aIrd .from them it
appears that "there were at Gibraltar when it was taken
one nunnery, two convents-one of tbe Franciscans and
the other of the Cathedral Church, one hospital of Fran-
ciscans, the Convent of Our Lady of Europa, four
chapels, and 1000 families." The petitioners in the first
of these papers stated, that "if a civil government was
established there as in the American coIonies, ol' 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.:- .


" A mayor, aldermen and common-council, to be annu-
ally chosen out of the English residing there; two sheriffs,
to be chosen out of the common-council; two bailiffs, to
be appointed by the sheriffs; a town-clerk; a judge of the
admiraltYi a chamberIain¡ a treasurer for the colony; a
muster-master, to be appointed by the mayor and aIder-
men, to mus ter the militia and the garrison whenever the
garrison is mustered, and to sign the muster-rolls with
the mayor; the militia to guard the two towers next the
land to prevent the soldiers deserting; a house to be sel-
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 consuIs 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, who decide an 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,
wouId 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 lawyel' 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'isJllltes in a free port, where there were but
few resident inhabitants i 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 might arise there, 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 i 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 11 th August, 1720, had dir~ted 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 beeo accordingly prepared, "after which a
commission passed the great seal, directing and empow-


xx2






676 GIBRALTAR.
ering the Judge-Advocate for the time being, together with
two merchants within the saia town of Gibralter, to be
appointed from time to time by the Judge-Aavocate, ana
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 pIcas of debt, account, 01' other con-
tracts, trespasses, and all manner of other personal pleas
whatsoever between any person 01' persons whatsoever,
residing or being within the said town 01' precinct 01' 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, appeal'ed to be stillin force,
ana the Attorney and Solicitor-General sta:ted that no ob-
jection had been made before then, as to the substance of
it, but only as to the persons appomted' to he 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 su bject to the command of the military Governor, ana
upon that account the more improper; and therefore it
had heen proposed that persons should be expressly ap-
pointed by His Majesty's commission to be judges, who
understood the law aneI were qualífied 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 saia
commission had heen passed at the instan ce of the said MI'.
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 fol' the
administl'ation of civil justice. They also expressed thelU-
selves favourable to the establishment of some form of
civil government, amI then saiel "Upon this infol'mation
we have made the best inquiry we could whethel' by the




GIBRALTAR. 677
articles of surrendcl' 01' any treaties, declal'ations, 01' othcr
public dcts ratificd by thc crown of Great Britain, any
legal provision has been made, 01' rules givcn for that
purpose, and have been able to find none; and thereforc
we are humbly of opinion that, as a fundamental necessal'y
to any form of civil government, without which courts of
judicature will be in a manner lIseless, and fol' 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 remal'ked
upon the evil of the absence of any but martiallaw, and
with a view to the framing of a scheme 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
charter to Tangiers as their model, and gave the following
brief but cmious account of the government establisbed
in that place while it was in the possession of England
during the reign of Charles II.; _H As to Tangiers, the
mcthod then taken was thus, viz. by letters-patent dated
the 20th April, 1668, thc town \Vas dcclared to be a free
city, all the inhabitants (being Christian s) were incorpo-
rated by the name of mayor, aldermen, and common-
alty, with a recorder and twelve common councilmen;
out of the mayor, recorder, and aldermen was constituted
a Court of Record fol' 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 garl'ison.) Besieres which a particular court is erected
for mercantile causes, and an proceedings were directed.
to he according to the laws of England, as near as the
condition of the place and safety of the inhabitants would
permit." Tbe report concluded with observing that "the
objection made to the court already established being only
with regard to the persons thereby appointed judges, we
are humbly of opinion, that if proper persons are expressly
nominated judges by Hís Majesty in the commission itself,
the present form may in other parts thereof not beim-
proper."-l Chal. Opino 169 to 181.
T~ result of this report seems to have been that the


nomination of the judge was afterwan]s made by the
King's commissioll, in the manner recommendeu; cer-
tainly no new chartel' of justice was then issued, for the
l'eport of the Attorney and Solocitor-General is dated




678 GIBRALTAR.
14th December, 1722, and the only charter granted by
Geo.l, was issued in the previous year, namely, upon
the 4th of November, in the seventh year of his reign.
Another charter of justice was granted by Geo. 2, on
the 10th of May, in the thirteenth year of his 1'eign,
and then another on the 1st of August, in the twenty-
sixth year of his reígn, making sorne alterations in the
courts established by the two former charters, but in
othe1' 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 pIeasure, such person to be called the Civil Judge,
01' the Jl1dge of the Court of Civil PIeas at Gibraltar.
This pel'son, with two resident inhabitants, to be appointed
by him during his pleasure, was to determine all suíts,
real and personal, (where the matter in dispute was not
less than 10 dollars,) that 111ight arise within the gar-
rison, according, as nearly as might be, to the laws of
England. The comt was also to hold pleas of foreign
attachment, to grant probates of wills and administration
of the estates of intestates. From this comt an appeal
was to lie to a court called "The Comt of Appeals,"
which was to consist of the Governor fol' the time being,
and of the Jl1dge-Advocate fur the time being, who was to
act as the Governor's assessor. Debts not exceeding 10
dollars were to be recovered before the Judge-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 demand, The Governor, the Judge-Advo-
cate, the Judge of the Court of Civil PIcas, and one inha-
bitant nominated by the crown, were aH 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 GeRel'al
Sessions, with powel' to try all off{mces except tl'eason 01'
misprision of treason, unless the offendel' was in actual
payas a soldier. The jurOl'S wel'e "to be taken out of
the inhabitants, including the gal'rison." The Judge-




GIBRALTAR. 679
Advocate was appointcd sitting magistrate for thc town
and territory of Gibraltar, and was directed to hold a
Petty Sessions on Monday and Thmsday 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 comt was to have power to in-
quire of and determine an "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 Comt to act in his stead as J udge of
the Court of General Sessions, and as sitting magistrate
for the town and garrison of Gibraltar, till the King's
pIe asure 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, undel'
the authority of the 46 Geo. 3, dated on the 26th April,
1815, and was directed to the Governor, the Commissioner
for N aval Aftairs, the Judge-Advocate, the Civil Secretary,
and the Commander of the N aval Forces at Gibraltar for
the time being, (the last not being undel' the rank of post
captain,) and also to an admirals and captains, and com-
manders of the ships of war witbin tbc port, (not under
the rank of post captain,) "to inquire, upon the oath of
good amllawful men of our sahl 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, fol'
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)
'rhe laws of England prevail at Gibraltar, so·far at least


as they are applicable to thc circumstances of thc co-
lony. The new Charter of Justiec dil'ects, as did those
which preceded it, that the courts established at Gibraltar
shall administer the law, as nearly as may be, aecording
to the practice at W estminster-Hall.


GOVERNMENT.


In matters relating to the civil government, Gibraltar is
still treated as a garrison town. The Governor is at once
the sole legislative and execlltive authority. His authority
in the former ca pacÍt)' , however, is very limited. The
laws of England are administerecl by the courts, and any
alterations which it may be deemed necessary to make
in them are usually made by Or<1ers in Council.


-


GIBRALTAR-CHARTER OF JUSTICE.


1st September, 1850.
WILLIAM THE FouRTH, by the grace of God, of tl¡e United King-
dom of Great Britain and Ireland King, Defender of the Faith, to aH
to wbom tbese presents sha1l come, greeting: Whereas OUT royal
father and predecessor Ring George the Third, by. letters.patent nnder
the great s~al of the United Kingdom of Great Britain amI Ireland,
bearing date at 'Yestminster the twelfth day of May, in tite fifty-
seventb year of his reign, did ereet and constitutc a comt of judi-
cature witbin the garrisoll and tr.rritory ot' Gibraltar, to be cal1ed by
the name of the Court of Civil Pleas at Gibraltar: And whereas
by the said letters· patent provision was made for tbe administra-
lion of justice in the said garrison and territory, and it was thereby
declared that the said letters-patent sbould be and remain in force only
until his said late Majesty, bis heirs, and successors should be pleased
to alter, revoke, or determine the same; And whereas it is expedient
that the said letters-patent be revoked: Now know ye, that we have
revoked, and do hereby rcvoke, the before mentioned Ictters-patent and
every part thereof.


And whereas it is expedient Iha! provision be mude for the better


(3) See ante, p. 3 to 16, on lhe
general topie, how far the eolonies are
subjecl lO lhe law of the mother coun-


try. Un lhe subjeet of Gibraltar par.
ticularly, see p. 15, n. (5).




GTBRALTAR-CHARTER OF JUSTICE. 681
and more effectual admillistration ofjustice in our garrison alld territory
of Gibraltar, amI for that purpose one Supreme Court of J ustice, to be
holden therein in tbe manner and form hereinafter mentioned, should be
cOll3tituted: Now know ye, that we, of our special grace, ccrtain know-
ledge, and mere motion, have thought fit to grant, direct, order, and
appoint, and by these presents do accordingly fol' us, OUT heirs, and
suCCeSsol'S, granl, 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 constitule
the said Supreme Court a Court of Record. And we do further will,
ordain, and appoint lhat the said Supreme Court of Gibraltar shall con-
sist of, and be holden by and before one jlldge, to be called the "Judge
of the Slip reme Courl of Gibraltar;" and that the said judge shall be a
barrister in England or Ireland of not les s than three years standing,
or an advocale admitted lo practise in our Court of Session in Scotland
by the space of three years; and the said judge shall from time to time
be nominated and appointed lo such his office by us, our heirs, and
successors, by letters-patent underlhe great seal ofthe Ullited Killgdom
of Great Britaill and Ireland: And we do hereby declare, ordain, and
grant, tbal, UpOll the death, rcsignation, or sickness, 01' incapacity of the
said judge, 01' in case of his absence fmm the said garrison and terrilory,
or in case of any such suspension fmm office as hereinafter mentioncd
of any sueh judge, it shall and may be lawful to and for the Governor
of our said garrison and territory for the time being, by any instrumellt
to be by him for that purpose made and issued undel' the public seal of
the said garrison and territory, to nominate and appoint sorne fit and
propel' person to aet as and in the place and stead of any such judge so
dyillg 01' rcsigning or labou1'ing under such sic,kness or incapacity as
afol'esaid, or being so absent as aforesaid from the said gar1'ison and te1'-
ritory, or beillg so suspended, until the vacaney so created by any such
death 01' resignatioll, 01' 5ickness, 01' incapacity, or absence, 01' sllspen-
sion, shall be supplied by a new appointment, to be made in manner
aforesaid, by US, our hei1's, and succcssors, 01' until the judge so becoming
sick o,' incapable, 01' being absent or suspended as afo,'esaid, shall re-
sume such his officc and ente\' into the discharge of tbe duties thereof:
And we do further will, ordain, and g\'ant that the said judge shall
hold such his office during our pleasurc: Provided neve1'theless 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 fol' that pur-
pose made and issued under the public seal of the said garrison alld
territory, upon the proof of the misconduct of any such judge as afore-
said, to sllspend him from such his office and from the discharge of the
duties thereof: Provided that, in every such case, the said Governor
sball immediately report for our infol'mation, thl'ough one of om princi-




682 GIBRALTAR-CHARTER OF JUSTICE.
pal Secretaries of State, the grounds and causes of such suspension.
And we do further grallt, 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 om royal arms within an exergue 01'
!abe! surrounding tlle same, with this inscription, "The Sea! 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 shal! be delivered over to and kcpt in the
custody of su eh person as shall be appointed by the said Governor of
our said garrison and territory to act as and in the place and stead of
the said judge : And we do further grant, ordain, and declare that the
said judge, so long as he shall hold bis office, shall be entitled to and
have and receive such sabry as shall be granted to him by US, our·
heirs, and sue¡;essors, and that sueh salary shall be in lieu of al! fces of
office, perquisites, emoluments, and advantages whatsoever; and that
no fee of office, perquisite, ernolument, or advantages whatsoever olher
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 ho such jndge as afore-
said shall be capable of accepting, taking, 01' performing any other office
or place of profit or emolument within our said garrison and territory,
on pain that the acceptanee of any such other ofl'ce or place as aforesaid
shall be and may be decreed in law, de facto, an avoidance of such his
office of judge; and the salary thereof shall cease and be deemed to have
cea sed accordingly from the time of the acceptance of any such other
office or place.


And we do hereby constitute and appoint our trust y 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 thel'e
shall be attached and belong to the said court such and so many officcl's
as to the judgc of the said court for the time being 8hall, frolD time to
time, appear to be necessary for the administration of justice and the
due execution of the powers and authorities which are granted and
committed to the said court by these our letters-patent: Provided ne-
vertheless, that no new officer sha 11 be created in the said court unless
the Governor of the said garrison and territory sltall first signify his ap-
probation thereof to the said judge for the time being, in writing, under
the hand of such Governor. And we do further ordain and direct that
all persons who shall and may be appointed to the offices of Registrar
01' Prothonotary, and Master or Reeper of Records, 01' Marshal of the
said court, and that all persons who shall be appointed in the said court
to any offices to which the duties shall correspond to those performed
by the Master 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 al! persons who shall and may be
appointed to any other offiee 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 direet and appoint, that the several offieers
of the said eourt shall hold their respective offiees 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 or Ireland, or as advocates in the Court of Session,of Seot-
land, or to the degree of Doctor of Laws at our Universities of Oxford,
Cambridge, 01' Dublin, or as attornies or solicitors oí any of our Courts
of Record at Westminster 01' Dublin, 01' as doctors in any Eeclesiastieal
Court in England 01' Ireland, or as writers to the signet in Scotland, and
any persons who have been at any time heretofore admitted to practise
as ad vocates, barristel'S, attornies, solicitors, 01' proctors in the Conrt oí
Civil and Criminal Justice heretofore existing in our said garrison and
territory. And we do further authorize our said Supreme Court to ap-
prove, admit, and enrol, as such attornies, solicitors, 01' proctors as
aforesaid, such and so many pel'sons as may be instructed, within our
said garrison and territory, in the knowledge and pl'actice of the law, by
any barrister, advocate, attorney, solicitor, or proctor duly admitted to
practise in the said court; and which persons shal! be so approved,
admitted, and enrolled, according to and in pursuance of any general
rule 01' rules of court to be for that purpose made in manner hereinafter
directed. And we do ol'dain and declare, that persons approved, ad-
mitted, and enrolled as aforcsaid, shall be and thcy are hereby authorized
to appear and plead and act for the suitors of the 'said Supreme Conrt,
subject always to be removed by the said Supreme Comt from their
station therein, upon reasonable cause. And we do íurther ordain, that
no person 01' persons whatsoever, not so approved, admitted, and en-
rolled as aforesaid, shall be allowed to appear, plead, or act in the said
Su preme Comt, for 01' on behalf of any suitors in the said court. And
we do hereby further ordain, direct, and appoint, that the said Supreme
Court of Gibraltar shall have cognizance of all pleas and jurisdiction in
all causes, whether c;vil, criminal, or mixed, arising within the said gar-
rison and territory, with jurisdiction over all om subjects and all other
persons whomsoever residing and being within the said garrison and
territory, save as hereinafter is excp.pted. And we do further give
and grant to the said Supreme Court of Gibraltar full power, authority,
and jurisdiction to judge and determine all qllestions there arising, ac-
cording to the laws now in force within our said garrison and territory,
and al! sllch 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 suecessors, with the advice and COllsent of Parliament, 01' in
our or their Privy Council, or by the Governor of Gibraltar for the time
being. And we do further gil'e and grant to the said Supreme Court
full power, jnl'isdiction, and authority to review the proceedings of all
inferior courls of justice within our said garrison and terrilory, and, if
necessary, to set aside or correet the same. Provieled always that nothing
herein contained shal! extend 01' he eonstrued lo gi ve to the said Su·
preme Court any authority to review the proceedings of any court mar-
tial holden within the said garrison and territory. And wc do further
ordain, direct, and appoinl, that, in any criminal case depeneling before
the said Supreme Court, the tri al of the parly 01" parties accused shal!
be before the judge of the said court and a jury of twelve men, who shaIl
concur in every verdict to be giVP.11 011 the trial of any such accused
party 01' parties; anel every such verelict shall be elelivered 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 !hey are discharged from
aUendance on the said court. Provided also, and we do further direct
and appoint, that alI issues of faet arising in civil suits 01' actions de-
pending in the said court, shall be tried and dccided by the said judge
and three assessors, to be appointed as hereinafter mentioned, until
otherwise provided for by law; and that the verdic! of the saiel judge
and assessors on the trial of any such issue shall be according to the
majority of votes; but if such votes should be equally divided, then
according to the opinion of the said judge; and every such verdict
shall be delivered in open court by the mouth of the said judge. And
in all cases where the sum 01' matter at issue in any such suit or action
shall exceed 01' be of the value of lnore than .flOO sterling, British
money, the said judge shall cause the evidence on every such tri al as
aforesaid to be taken down in writing by the clerk or other proper
officer in open comt, in the presence of the witnesses respectively
giving the same, and the evidcncc so taken shall be enlered upon lhe
proceedings of the saiel court and be of record; and in every case in
which any appeal shall be made and allowed under the provisions of
this our charter, from any judgment of the said court, copies of all do-
cuments and papers which shal! have been produced and given in
evidence, shal! be certified and transmitted by the said clerk or other
proper officer as authcntic; aud also copies of ally documents and
papers which shall have been produccd and tendered in cvidence and
rejectcd, shall, if required by the party producing the sume, be in Iike
manner ~uthenticated, but marked by Buch officer as aforcsaid as re-
jccted, in order that al! such copies may be annexed to the record as
par! thereof in case of appeal. Ami we do further direct and declare,
thut it shall bc lawful for thc judge, on lhe application of either of the
parties, plaintiff 01' defendant, al or befo re 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, although
the sum 01' matter at issue may be les s Ihan .f100 sterling; provided
that it shall be made lo appear to such judge that such judgment, de-
cree, order, 01' sentence, which may be given, made, 01' pronounced in
such suit 01' 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, 01' banishment from the said garrison and territory, shall
be carried into execution until a report of aH the proceedings upon any
such trial hatl! been laid before 01' transmitted to the Governor of the
said garrison and territory by the judge pl'esiding at any such trial, and
until sl1ch Governor shall have authorized and approved the execution
of such sentence. Provided always, that no officer, soldier, 01' other
person in actual payas a member of the garrison, shall 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 pmpose.
Provided always, and we do hereby furtlwr will amI declare, that in
case any action 01' suit shall be hegun, instituted, 01' pl'osecuted against
any officer, soldier, or otber person, in payas a member of our garrison,
to recover damages for any trespass, assauIt, hattery, 01' other violence
or wrong committed, 01' alleged to have been committed, by him ol'
them, or for any damage or injury whatsoevt'r, not being a matter of
debt, account, or contraet, 01' relating to any right or title to any lands,
houses, lenements, or hereditaments, 01' any interest therein, it shall be
Jawful for the Governor fol' the time being of the said garrison and ter-
rilory, at his discretion, by arder under his hand, lo suspend such pro-
ceeding, and to arder the staying thereof at any time before judgrnent,
01' to stay and suspend any execution from issuing upon any such judg-
ment; and upondelivery of such order to the registrar of the said court,
01' to the person acting as registrar of the said court, all such proceed-
ings shall cease and be stayed until such order shall be revoked by the
Governor fOl' the time being, saving to the plaintiff or plaintiffs, in any
such action or suít, a11 such suits and remedies as he, she, 01' they may
be or would have been entitled lo institute in England or elsewhere out
of the said gal'rison and territory of Gibraltar, if tbe said action 01' suit,
so stayed, liad not been there commenced. And we do hereby also fur-
ther ordain and direct, that in cases in which any officer, soldier, or
other person in actual payas a member of the garrison shall have been
arrested, imprisoned, 01' taken in exeeution, with the leave of tbe Go-
vernal' as aforesaid, it shall be nevertheless lawful for the Governor for
the time being, by an order in writing signed by him, afterwards to
order and dil'€ct, that sl!ch officer, soldier, or other person shall be dis-




686 GlBRALTAR-CHARTER OF JUSTICE.
charged from such arrest, imprisonment, or execntion; and the officer
or gaojer, in whose custody such officer, soldier, or other person sllalt
happen to be, is hereby authorized, empowered, and commanded forth-
with, upon the receipt of such order, to discharge him out of custody.
And we do hereby ordain and difect, that such discharge under such
ordel' shall not be deemed an escape fl'om the custody of such officer or
gaoler, but that such order of discharge shall be and be taken to be an
indemnity to such officer or gaojer for such discharge. And we do
hereby further ordain and direct, that in all such cases the Covernor fol'
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 U8 through one of our principal Seeretaries of State. Provided always,
that such discharge from imprisonment shall in no degree release the
party so discharged from the debt on accountofwhich his body had been
taken in execution. And we do further grant, ordain, direct, and ap-
point, that it shall and may be jawful for the said judge, by any rules 01'
orders of court to be by him from time to time for that purpose made
and published, to frame, com'titute, and establish such rules,orders, and
regulations as to him shall seem meet, touching and concerning the
time and place of holding the said Supreme Court, and touching the
forms and manner of proceeding to be observed in the 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 aHowing 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 demandcd and taken by the
advocates, attoruies, and officers of the said court, the summoning, im-
pannelling, and challenging of juries, the admission of barristers, advo-
cates, attornies, solicitors, and proctors in the said court, and touching
and concerning aH such other matters and things necessary for the pro-
per conduct and despatch of business in the said Supreme Court; and
al! such rules, ordel's, and regulations from time to time to revoke, alter,
amend, or renew, as occasion may require. Provided always, that no
such rules, orders, and regulations shall be repugnant to this our
charter, and that the same shall be so framed as to promote, as far as
may be, economy and expedition in the despatch of the business of the
said Supreme Court; and that aH such rules and forms of practice, pro-
cess, and proceeding shaH, so far as the circumstances of the said gar-
rison and territory may permit, be framed with reference to the
cOl'responding 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 obscul'ity, and
promulgated in the most public and authentic manner in the same gar-
rison and territory for three months at least beforc the sume shull operate
and take effect. Provided always, that an such rules, orders, and regu-
lations shall forthwith be transmitted to us, ollr heirs, and successors,
under the seal of the said court, for our or their approbation, correction,
or disallowance. And whereas it may be expedient and necessary to
make provision respecting the qllulificution of jllrors and assessors to
serve in the said comt, 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 SlIpreme
Court, in civil cases: Now we do further ordain, direct, and appoint,
that it shal! 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 shall forthwith be
transmitted to us for our approbation, correction, or disallowance. And
whel'eas it may be expedient to establish within ollr said garrison and
territory Courts of Reqllest, and other courts having jllt'isdiction in civil
cases of small amount 01' valuc, and iu cases of crimes 01' offcnces not
plInishable with deatb, transportation, 01' banishment: Now we do
hereby authorize and empowel' the Governor for the time being of our
said garrison und territory, by any laws and ordinances to be from time
to time made fol' that purpose, to erect, constitute, and establish aH 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 or matter in dispute sh<tll exceed the amount or value
of .f40 sterling money, or wherein the title to any lands 01' tenernents,
or any fee, duty, or office may be in question, or whereby rights in fu~
ture may be bound; and provided also that the jurisdiction of such
courts in criminal cases shall not be extended to any case wherein any
person may be accused of any crime punishable by death, transporta-
tion, or banishment from the said garrison and territory. And we do
hereby authorize aud empower the said Governor, by and with the ad-
vice of our sajd judge for the time being, to make, ordain, and establish
aU necessary rules, orders, or regulations respecting the mauner 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 all such other
rules, orders, and regulations as may be necessary for giving full and
perfect effect to the jurisdiction of the said courts. And we do hereby
grant, ordain, and direct, that it shall and may be lawful for any per-
son or persons, being a party or parties to any civil suit or action de-




688 GIBRALTAR-CHAltTER OF JUSTlCE.
pending in the said Supreme Court of tbe garrison and territory'of
Gibraltar, to appeal to US, our heirs, and sueeessors, in our or their
Privy Council, against any final judgment, decree, or sentenee oC the
said court, or against any rule or order made in any such civil suit or
action having the e/fect of a final or definitive sen ten ce ; and which
appeals shall be made subject to the rules, regulations, and limitations
following, that is to say, in case any su eh judgment, deeree, order, or
sentence shal! be given or pronounced for or in respect of any sum or
matter at issue aboye the amount or value of .f300 slerling, or in case
such judgmenl, decree, order, or sentence shall involve, directly or in-
directly, any claim, demand, or question to or respecting property, or
any civil right, amounling to or of the value of .f300 sterling, the person
or persons feeling aggrieved by any such judgment, decree, order, or
sentence of tbe said Supreme COUl't, may, within fomteen 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, om heirs, and successors, in our or their Privy Council ; and in case
sllch leave lo appeal shal! be prayed by the party or parties who is or
are directed to pay any sum of money, or perform any duty, the said
Supreme Comt shall and is hel'eby empowered lo direct Ihat the judg-
men!, decl'ee, order, or sentence appealed fl'om shall be carried ¡nto
execution, or that the execution thereof shall be suspended pending the
said a~peal, 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 direet such judgment, decree, order, or sentence to
be canied into executioll, the person or persons inwhose favoLlr the
same shall be given, shall, befo re the execlllion thereof, entel' inlo good
and sllfficient security, to be approved by the said Sllpreme Comt, for
the due performance of such judgment or order, as we, our heirs, and
successors shall think fit to make therellpon; 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 Iike man-
ner, and before any order for the suspension of any sllch execution is
made, enter into good and sufficient secmity, to be approved by the
said Supreme Comt, for the due performance of such judgment or order
as we, our heirs, or successors shall think fit to make thereupon; and
in al! cases we will and require that security shall also be given by the
party or parties appellant, to the satisfaction of the Supreme Court, for
the prosecution of the appeal, and fol' tbe payment of all such costs as
may be awarded by us, ou\' heirs, and successors, to the party or parties
respondent; and if such last-mentioned security shal! be ente red into
within three months from the date of such petitions fOl" leave to appeal,
J;hen, and not otherwise, the said Supreme Comt shaU allow the ap-




GlBRALTAR-CHARTER OF JUSTICE. 689
peal, and the party 01' parties appellant shall be at liberty to prefer and
prosecute his, her, 01' t!Jeir 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 us from our plantations 01' colonies. And
we do hereby reserve to ourselves, our heirs, and successors, in our 01'
their Privy Couneil, full power and authority, upon the humble petition
at any time, of any person 01' persons aggl'ieved by any judgment 01'
determination of the said Supreme Court, to admit his, her, 01' their
appeal therefrom, upon snch other terms, and upon and subjeet to such
other limitations, restrietions, and regulations as we or they shall think
fit; and to reverse, correet, al' vary such j udgment or 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 cou!'t shall certify and transmit to us,
our heirs and successors, in our or their Privy Counci), a true and
exact eopy of an evidence, proceedings,judgments, decrees. and orders,
had 01' 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 Su preme
Court shall, in al! cases of appeal to us, our heirs, 01' successors, con-
form to and execute such judgments and orders as we or they shall think
fit to make in the premises, in such manner as any original judgment,
decree, or decretal order, or rule of the said Supreme Court of the gar-
rison and territory of Gibraltar could or might have been executed. And
we do hereby strietly ('harge and command all 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, given, or created, they be aiding and assisting and
obedient in all things, as they will answer (he contrary at their peri!.
ProvidE'd always that nothing in these presents contained, 01' any aet
which shall be done under the authority thereof, shall extend 01' be
construed to extend to prevent us, our heirs, and successors from re-
voking these presellts or nny part thereof, or from making sueh fur-
ther 01' other provision, by letters-patent, for the administmtion of jus-
tiee, civil and criminal, within the said ganison and territory, and the
plaees now or hereafter at any time to be annexed thereto, as to us,
our heirs, and successors shall seem fit, in as fu]] and ample a manner
as if these presents had not been made, these presents or any thing
therein eontained to the eontrary 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 presEmts, shall by proclama-
tion notify to the inhabitants of the said garrison und territory the time
when the said courts hereby established will be open i and as soon as


yy




690 GIBRALTAR-eHARTER OF JUSTICJ!..
the Judge of the said Supreme Court shall have assumed and entered
upon the exercise of his jurisdiction therein, then and from thenceforth
the Court of Civil Pleas now established within the said garrison and
territory, and the Court of Appeals DOW established within the same,
and al! other courts, civil and criminal, shal! be absolutelyabolished,
cease, alld determine; and every suit, action, complaint, matter, 01'
thing, civil and criminal, which shall be dependillg in such last-mentioned
courts respectively, shall and may be proceeded upon in the Supreme
Court instituted under and by virtue of these presellts; and all pro-
ceedillgs which shall hereafter be had in su eh action 01' suit, 01' other
matter, civil 01' criminal, respectively, shall be conducted in like man-
ner as if such action 01' suit, 01' other matter, civil 01' criminal, had been
originally commenced in the said Supreme 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 safc custody in such place, and
be thereafter kept by such person as our Governor shall appoint; and al!
parties concerned shall and may have l'ecourse to tne said records and
proceedings, as to any other record s and proceedings of the said court.
And we do bereby further declare and direct, tbat during tlle absence
froro our ~aid garrison and territory of the Governor thereof, or if there
sha11 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, an and every the powers hereby granted to and vested in the Go-
vernor for the time being of the said garrison and territory, shalI and
may be executed by and vested in the Lieutenant-Governor thercof, or
the officer for the time being having command of the troops. In wit-
ness whereof we have cansed these om 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" fOl" putting in force within the garrison and ter-
ritory of Gibraltar the laws of England relating to bankrupts.




GIBRALTAR-ORDER IN COUNCIL. 691
This ordinance, in the first section, recited the expediency of putting


in force these laws, and then decJared them to be in force within the
garrison and territory of Gibraltar.


The second section declared "that an 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 Comt of Bankruptcy, and
the Comt of Review, or by any Judge or Judges ofthe said comts, save
where such judge is authorized to exercise the powers given by the said
laws to any Commissioners of the Comt of Bankruptcy, shall and may
be exercised and performed by the Supreme Comt of Gibraltar."


The third section declares that the commissioners (not exceeding
three in number) are to be appointed by the person exercising the go-
vernment, and "that an the powers by the said laws given to, and
duties thereby directed to be performed by any one or more Cornmis-
sioner or Cornrnissioners of the Comt of Bankruptcy, shall and may
be exercised or perforrned by the person 01' persons 80 appointed a Com-
missioner or Commissioners of Bankrupt, in manner above mentioned;
and all the powers by tbe said laws gi~en to, and an the duties thereby
dirccted to be performed by a sub·division comt consisting of three com-
missioners, shall und may be exercised and performed by one Comrnis-
sioner of Bankrupt, provided there be not more than one Commissioner
competent lo act, or by two Commissioners, provided there be not more
than two Commissioners competent to act under and by virtue of the
appointment und commission hereinbefore mentioned. Provided
always, that no single Commi~sioner shall have power to commit any
bankrupt or otller person examined before him otherwise than to tite
care and custocfy of a messenger or otber officer of the Supreme Court,
to be by him detained in his custody and to be brought up be rore a
Sub·division Comt or the Supreme Court within three days after such
commitment, for which purpose one of such comts sball be forthwith
summoned, and to wbich comt such examination shall be adjourned."


Any barrister, attorney, or solicitor appointed a Commissioner may
still continue to practise, " provided always, tbat no person shall act as
a Commissioner of Bankrupt and as a barrister, solicitor, ol' attorncy in
one and the same cause, malter, or 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, or other person appointed by the Go-
vernor.


The persons to be appointed official assignees are to be merchants,
broker$, or accountants, or persons who are or have been engaged in
trade in the cities of London, ''Vestrninster, Liverpool, or Eristol, Ol' in
the garrison and territory of Gibraltar, "and in all cases in which any
part of the estate and effects of any hankrnpt shall be reqllired to be


YY2




692 GIBRALTAR-ORDER IN COUNCIL.
transferred, delivered, or paid by the offieial assignee into the Bank of
England ór elsewhere, or to be set apart in the hands of the Aecountant-
General of the High Comt of Chancery, such estate and effects shall be
retained in the hands of the official assignee or otherwise, and shall in
an respects be subject to such order, rule, and rE'gulation for the keeping
of the aceount of the said estate and effeets, and for the eustody, invest-
ment, payment, or other disposition thereof, as the J udges of the Sll-
preme Court of Gibraltar shall from time to time think fit to direct."


By the sixth sectiori no person is liable to beco me a bankrupt unless
he be a natural born subject of His Majesty, or have resided two years
in Gibraltar.


The seventh and eighth seetions relate lo fees to be paid to the Re-
gistrar.


By the ninth seetion " an issues direeted or 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, or
by the said Judge and a jury of twelve men, in the same ma-nner and
under and subject to aH and singular the provisions and conditions
established and in use for the trial of other issues of faet by the said Su-
preme Court."


By the tenth section "all appeals from any final judgment, decree,
or sentenee of the Supreme Court, touching any malter relating to
bankrupts, or against any rule or order made in any such matter having
the effect of a final or definitive sentenee, shall be to His Majesty, bis
heirs, and successors, in his 01' their Privy Council, subject to the rules,
regulations, and Jimitations prescribed by IIis Majest:{s letters-patent
bearing date at VVestminster on the 1st day of September in the first
year of his reign, for appeals against any final judgment, decree, or
sentence of the Supreme Court, or any rule or order having the effeet 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 ordcrs "made by the Judge of the Supreme
Court 01' Gibraltar, under and by virtne of the said laws relating to
bankl'upts;' shall be forthwith transmitted to His lVIajesty for his appro·
bation.


By the thirteenth section "al! the rights, pl'ivileges, 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 of Gibraltar, ex-
cept as it is by this ordinance otherwise provided." ,


By the fourteenth section "a publication in the Gibraltar Chronielo
sball be deemed and taken to be a pubJication in the London Gazette




GIBRALTAR-ORDER IN COUNCIL. 693
01' any otlLer newspapcr, for an the purposcs of the said laws relating to
bankrupts."


By the fifteenth section this ordinance was not lo take etfect till His
Majesty's pleasure was known.


On the 12th October, 1832, it received 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, or mixed, with power to review the proceedings of all inferior
courls of justice; and also letters-patent of the 2d March, 1832, by
which the court was invested with jurisdiction in all testamentary cases,
and in all cases of the administration of intestates' estates; ~nd also the
Order in Council of the 12th October,1832, by which the court was
invested with the power of the Lord Chancellor in matters relating to
bunkrupts. They then declare that, in pursuance of the directions con-
tained in the Charler of Justice, the following rules and regulations ha ve
been established :-


Terms.-There shall be three terms in each year, the court lO sit at
least every Tuesday during the continuance of each of the terms.


'fhe first term is to continue during the months of January, Fcbruary
and March; the second during those of May and June; and tile third
during those of September, October and November.


'fhere must be at least two criminal sessions in each year, to com-
menee on or about the 1 st of June and the 1st of December in each
year.


The court may al50 sit in vacation ir business shall require·it.
The civil practice of the court, whether in its legal or equitable juris-


diction, shall be simply by petition, answer, or demuner; and (if ne-
cessary) replication and joinder in demurrer, and rejoinder, addressed
lo the honourable the Judge of the Supreme Court.


In the equitable proceedings of the same court the proceedings are
to be as in England, except that witnesses are to be examined und cross-
examined viva voceo


Judgme71ts.-The party in whose favour any final judgment, decree,
or sentence of tbe court, in any civil action or suit, has been given,
where by law thore can be no appeal to His Majesty, or where there
being such right ofappeal, no application for su eh appeal is made within
the time appointed for so doing, may at his own risk and without leave
sue out exccution.


Notice of the sale of properly scizeu must be given at least one week
before the sale in (he Gibraltar Chronicle.


Barrister's.-The pructitioncrs in the Supremc Cuurt shall appear uud




694 GIBRALTAR-ORDER IN COUNCIL.
plead indiscriminately a3 barristers, ad vocates, attornies, solicitors, and
proctors, and every such person mus! be admitted, sworn, and enrolled
by tbe court, upon petition staling his compliance with the regulations
of lhe charter upon lhat subjeet, and his qualifications so to be admitted.


The fees of (he practitioners are regulated by the Governor.
Prosecutions-The indictments and informations in thi~ court shall be


exhibited and filed ·or not by His Majesty's Attorney.General in bis
discretion; but any party may move the court for a criminal inforrnation
according to the practicé of the COUTt of King's Bench in England, 01'
carry an indictment rejected by the Attorney-General before the grand
jury, al his own cost and responsibility, agreeably to the practice of the
Courts'of 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


The general rules made in the English courls under the act 11 Geo.4,
and 1 Wm. 4, c.,70, are adopted so far as they are not repugnant to tbe
practice pf the Supreme Court.


Bankruptcy.-The general rules and practice of bankruptcy in Eng-
land are, by an order dated 15tb Febrnary, 1833, made tbe rules and
practice in the Bankruptcy Court at Gibraltar, and all future rules to
be made by tbe Bankruptcy Court in England, so far as they are appli-
cable, are to be the rules of the comt al 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 to givebond for the due performance of his office, himself in
the sum of .f600, and two suretics in sums lo tbe like amount. He
shall pay over to the registrar al! such SUlUS of money as sball come to
his hands so soon as they shall amount to &100.




( 695 )


HELIGOLAND.


-


HELIGOLAND is an isIand which líes on the coast of HoI-
stein, at nearly an equaI distance from the mouths of the
Jahde, the Weset', the Elbe, the Eider, and the Hever.
It is said by sorne to derive its name, which 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 whoIe 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 de'Struction of them, aml forget every other
occupation so long as the game is to be found. Even if
~ssembled in church when the game arrive, the congrega-
tion rush out immediately with their pastol' at their head,
and this sport of necessity is begun without deIay.


The island is sub-divided into the CIifr 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 C¡itf is a continued 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 const::mtly
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 cuItivate barIey 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
dlere are ooIy fishermens' huts. There are two wells of




696 lIELIGOLAN D.
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 amI Hamburgh in exchange for
6sh.


The island formerly belonged to thc crown of Den-
mark, but was taken from the Danes by a small squadron
in September, 1807, and converted into a depot fol' the
merchandise, which, in spite of Napoleon's decrees of ex-
elusion, was smuggled into evel'Y parí of thc continent.
At the general peace it was retained by Engrand. 'rhe
Governor and garrison have been withdrawn since the
war, and a commandunt only resides there as the Bl'itish
consul. The people govern tbemselves.-Edin. Gazette,
Ency. Brit. Supp. and Ency. 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 EngIand, is seventy-
five miles, and from the nearest French ports seventeen
miles. It is considered as for sorne purposes forming
parce1 of the cOl1nty of Hanis, and in ecclesiasticaI mat-
tel'S is incorporated with the see of Winchester.


The climate is exceedingIy mild and the soíl of a light
but prolific ql1ality.


The population is estimated at abOl1t 30,000. St. He-
lier's is the capital of the island.


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-
gl1uge of the pulpit and of the eourts of justice.


HISTORY AND CONSTITUTION.


These islands beeame part of the dominions of England
when William the Conqueror established himself on the
EngIish 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 fOl'tresses and the military defenees
of the island.
, The assembIy consists of the Bailiff and twelve jurats,


the dean and eleven l'ectors, and the twelve high eonsta-
bIes of the isIand, aided by His Majesty's Attorney and
Solicitor-General. There is a sIight difference in the
number of votes as the body sits in the States of Delibera-
tion or States of EIection.


The States of Delibel'ation approach neal'est to OUl'
Parliament, as they consíder and decide all matters affect-
ing the general weal, assess taxes, and inspect the public




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 pel'son is then put in nomination. When the re-
turn is contested the ultimate decision is left to this Ge-
neral Assembly, which differs from the deliberative body
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 first and noblest body, the dean and clergy
as the second, anel 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 pf'opter 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 Convcntion till he is natu-
ralized. By an order in eouncil of the reign or James 1.
(1619) it is ol'del'ed, that the sta tes shall not meet except
upon being convened by the Governol', "with this quali-
fication, that if the Bailiff 01' justices shall requil'e an
assembly of the states, the Governol' shall not defer it
aboye fifteen days, except he have such.cause to the con-
tral'y eithel' in respect to the safety of the island 01' oUt'
special service otherwise, as he will answer to us 01' the
Lords of oul' Council, whereof he shall give as pl'esent
advice as possibly wind and weather may serve."


The great business of these states is to Ievy money for
the public service, and in some other respects it assumes
pow~rs resembling those of the Parliament of EngIand.-
Falle, c. vii.; Ency. Metro.


The Bailiff is the chief officer of justice in the island,
and holds immediately by patent from the King. He




JERSEY. 699
aets in eonjunction with the jurats, who are twelve in
number.


'I'he Jurats, who exercise duties of a mixed nature,
being at once judges and legislators, are chosen by the
people, oue for each parish in the island. Falle (e. 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. 'I'he writ is delivered to the minister,
who, after divine service, reads it from the pulpit, setting
out usualIy 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. 'I'he people
give their votes at the church door as they go out, and he
that has the majority throughout tlle island is declared
duly elected. Without the verdict and opinion of these
twelve the Bailifr cannot pronounce. In case of inequality
of opinions, he is bound to follow the majority. But he
has the choice betwixt opinions equal in number."


COURTS.


Thel'e is but one court of judieature, yet, because
matters are of more 01' less moment, 01' require different
methods of proceeding, this court is distinguished into
four classes 01' courts. 'I'he first is called the Court of
Inheritance, which is opened at the beginning of every
term, and deeides on questions arising in respeet of real
property. 'I'he seeond is the Comt of Catel, 01' chattels
and movables, in which actions upon simple contmets
may be tried, but the principal business of which is the
adjudication of decrees, 01' the legal settIements of claims
upon insolvents. 'I'he third eourt is the Extl'aordinary
Court, which was established to assist the Court of Catel,
when the causes in that court beeame too numerous for it.
'I'he Extl'aordinary Comt deeides upon arrear s of rent
not exceeding ten years, arrcsts, distrainings, &c. &e.
'I'he fourth is the Saturday Court, whieh is also al1 extra-
ordinary and subsiduary comt, and pl'operly but a branch
of the former. In term time it is appointed principally
for the King's causes, and out of term for eauses of bre-
vity which admit of no delay, as causes of admiralty,




700 JERSEY.
causes betWM'1 mel'chants, breaches of the peace, &c.-
Falle's Account of Jersey, c. 4.


The officers of the comt 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; two Denunciators 01' Under-sherifts, and an
Usher.


The court is a royal court, having cognizance of aH
pleas, real, personal, mixed, and criminal, treason and
some othcr 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 abovc the
value of 300 livres tournois. N o appeallies in criminal
cases.


In criminal matters every crime is first investigated by
a petty jury, seven of whom musí concur to find a pri-
soner guilty. The prisoner is allowed an appeal froIn
thcir decision to la Grand Enquete, which consists of
twenty-four persons. }'ive 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 froro these líes an
appeal to the Court of Judgment, consisting of not less
than seven members; and again froIn them, if the matter
in dispute amount to 40s. of freehold, 01' .i'40 of personal
property, to the King in Council. Up to the reign of
Elizabeth tIte 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 fOl' 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.


TIte Ecclesiastical Comt consists of a dean and eleven
rectors presiding over the twelve parishes of the island.
The dean is empowered to grant pl'obate of wills, and to
exercise the pOWCI'S of a consistory comt. 'fhe islaml
was placed un del' the see of vVinchester hy Queen Eliza-
beth by an order in Council, datcd 11 th March, 1568.


(1) Constit' JOhUllllis Regís, 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 thc
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 soevel', shall be of force in the
island until after having be en presented to the Royal
Court in order to be there registel'cd and published,
and in case such ol'ders, warrants 01' letters shall be
found contl'al'y to the eharters and privileges of the said
island 01' burthensome to it, the registl'ation, 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 mcntioned, and in which jt
it interested, they must be exemplified in form under the
great seal of England, and sent ¡nto the said island anel
therc enregistcred and publishcd, in order that the in-
habitants may have knowledge thereof, that they may
eonform themselves thereto, and avoid the penalties of
offending against them.-Code of Jersey, 159, 160.


The laws whieh govern these islands are the ancient
eustoms of Normandy as eontained in Le Grand Coutu-
miel', 01' in La Somme de Man<;el, municipal and local
usages of the island, ordinances made by the Kings of
England 01' by eommissioners royal, and Orders in Council.
N o aet of parliament affeets these islands, unless they are
particularly named therein. (2) The following aecount of
the jUl'isdietion of the English eourts in these islands is
taken from Hale's Histol'y of the Common Law.


Mich. 1,2 Edw. 2, Rot. 45, coram Rege. A great eom-
plaint was made by petition against the Deputy-Governol'
of those islands fol' divers oppl'essions and wl'ongs done
there. This petition was by the Chaneellor delivered into
the Court of B. R. to proeeed upon it, whel'eupon there
were pleadings on both sides; bllill'beeause it appeared
to be for things done and transaeted in the said islands,
judgment was thus given :-" Et quia negotiam prrediet'
in curia hie tel'minari non potest, eo quod juratores in-


(1) See ante, p.3 lo 16 on (his subject. (~) 4 lnst, 1;,70, pp. 286.287.




702 JERSEY.
sulre prrediet' eoram' justieiariis hie venire non possunt,
nee de jure debent, nec aliqua negotia infr~lsula prre-
dicta emergentia terminari non debent, nisi secundum
eonsuet' insulre prredictre. Ideo reeordum l'etl'otraditur
Caneellario ut inde flat eommissio Domino Regis ad ne-
gotia prredieta in in sula prredicta audiencIa et tel'minanda
seeundum eonsuet' insulre prredietre."


And aeeordingly, 14th June, 1565, upon a report from
tbe Attorney-General, and adviee with the two Chief
Justiees, a general direction was given by the Queen and
her Conneil, that an suits between the islandcrs, 01' 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 this distinetion and
Jimitation, 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 impedít brought by the King in
B. R. he re fol' a ehurch in those islands, so in a quo
wnrranto for liberties there j so a demand oi' redemption
of lands sold by the King's tcnant within ayear and a
day, aecording: to the custom of Normandy; so in an in-
formation for a riot, or grand contempt against a governor
deputed by tbe King. These and tbe 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;
Mich. 18 Edw. 2, Rot.123, 124,125; amI Pase. 1 Edw.3,
Rot.59.


And for tbe same reason it is, that a writ of habeas
eorpus lies into those islands for one imprisoned there,
for the King may demand and must have an aeeount of
the cause of any of his subjeets' loss of liberty, and there-
fore a return must be made of this writ, to give the Court
nn 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 fol' refusing to cxecute
a writ of !tabeas corpus out ofthe King's Bench, 33 Edw.l,
makes evident.


PECULIAR LAWS.


Insolvency.-In cases of insolveney the debtol' files an
affidavit of his insolvency in the Cohue Royale, (01' place




JERSEY. 703
of judicature), and at the same time hands in a schedule
of his debts and of his means of satisfying tbem. Four
public proc1amations are then made at certain intervals,
and upon the fourth the creditors come in. The judge,
commencing at the bottom of the l¡st, 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. If 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.-Fal1e'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. MI'. 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 their Iaws "coIlected, methodized amI digested
inío a system 01' code." This wish was not gratified till
neal'ly 80 years afterwards, when a sma}l volume entitled
" ACode of Laws for the Island of Jersey," was pub-
lished, with a confirmation and ratification of tbe work by
the Privy Council, 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
c1aims of his creditors.


The debtor who shaIl cIaim to put his effects into the
hands of the COlll't, in order to procure time to arrange
his affairs, shaIl not be pcrmitted to do so till after having
satisfied the court that they are sufficicnt to discharge his
debts; and in that event he shaIl he bound to produce an
exact statement of aIl his effects, real and personal, and
to lodge at the same time with the secretary aIl his books
of account, bills, bonds, papers, &c. verified by oath, in
order that they may be l'eferretl to in case of necessity.-
Code of Laws, QQ1.


LIMITATIONS.


Three years of interruption or discontinual1ce of claim
in heritable matters, and one year in possessory matters,
shan ~a sufficient prescription.-Code, 168 .


.Any person, after having peaceably and without in ter-
ruption, enjoJ'ea am·jng fOJ·ty ycars any immoveable pro-




JERSEY.


perty, shall not be disturbed in l'egal'Cl to the ownership
of the thing po9i!lessed; the possession for that period
giving a perfect aneI uncontrovel,tible right according to
the ancient custom of the island.-Code, 223.


REGISTRATION OF DEEDS.


Deeds and hypothecations are subject to registration,
undel' pain of being considered private, and of having
no effect over others posterior in date. Such deeds to
have no effect whatever if not registe red within six ll10nths
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 tIte
heir whether he is named 01' not.-Falle, 86.


Rate of Interest.-Conformably to the ordonnance esta-
blished by the act of the comt l'elating 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 usurers, 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 soíl and climate
are good, and though the land generally slopes down-
wanls to the north, it produces excellent crops of every
kind.


HISTORY AND CONSTITUTION.
In its history and constitution this island very much


rcscmhlcs Jcrscy.-See Halc's History 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
WiUiam the Conqueror. Dnder the reign of his son,
Sampson D'Anneville obtained the grant of a large seig-
nory, and established thc feudal system and other institu-
tions existing in the rest of 'Villiam's dominions. This
SOl't of government was howcyer almost abolishcd by
King John, who established by chartel' a court consisting
of twelve jurats.


Tlle GovernoJ' has at present the care and custody of
t\\(~ cast\es, fortiücations, &c., ann his jurisniction ex-
tends oyer aU the channel islands, except Jersey. The
duties of bis office are performed by a Lieutenant-Gover-
n<ll', appointed by c<lmmission from the crown.


The Assembly, called the States of the Island, is only
he1d on particulal' occasions. Under tbe name of the
States of Election, it appoints the magístrates and the
slJe riff. 'Y\,c mem\lers cmnposing the States of Election
are the Bailiff, Procureur aml twelve Jurats; the eight
Rectors of the ¡sland; the two Constables appointed for
('.'<I..d\. ~{ dw, (~t\ \la:rí."h.('.,,; the. twe.hre. Dau'Z3.Ule.N, iu e.adl,
excepting the town anu the vale, the former returning
twenty, the latter shdeen, making altogether tbe llumber
of 174. In this Assembly the Governor 01' his Lieutenant


:. Z Z




706 GUERNSEY.
has no vote, and the Bailiff presides as speaker. When
money is to be l'aised, the ehief local allthority eonvenes
the States of Deliberation, an assembly consisting of
thirty-two members, formed by the Bailiff and Procurellr,
the twelve Jurafs, the eight Rectors, and the Consta bIes
and Douzaniers of the General Council, who in this as-
sembly amount only to ten. The taxes and subsidies, when
out of the ordinary comse, must be sanctioned by the King
in Couneil before 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 special licenses for the
solemnization of private 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 inhabi~ants, 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 fol'
its strait, called lhe Race of Alderney, so fatal to ship-
pingo


SARK is about five miles in length. and not three broad.
Its cliffs on an sides render it almost inaccessible.


Alderney and Sark are under the jurisdiction of the
Governor of Guernsey.


'I'here is in Alderney a bailiff and other officers of
jnstice, from whom there lies an appeal to the courts at
Guernsey.


Sark is under the same kind of government as AMer-
ney.


The laws of Guernsey are very nearly the same as
those of Jersey. Under the head of " Courts" will be
noticed the principal differenees between them.


LAWS.


Courts-Appeals, ~·c.
On the 11th September, 1815, a cOl11mission was issued


to G. S. Holl'Oyd. H. M. Dyel', and Willial11 BoIland,
Esquires, to examine into the law~ in force between debtor
and creditor in the Island of Guernsey. The coml11is-
sionel's 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
public 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 <'Y0\<e \()cal tl:ibunal before which alllegal controversies
are carried for determination. It consists of the Bailíff
(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, but who
is not distinguisbed from bis brother Jurats when the
Bailíff himself is present N o assembly of the court can
be complete without the Bailiff or bis Lieutenant. Tber~
are three terms in ayear, each of which continues six.
weeks. It sits occasionally also in vacation. During tbe
terms four Jurats are assigned to attend in eourt in rota-
tion, though two of them, with the Bailiff or his Lieute-
tenant, are sufficient to constitute what is termed an
Ordinary Court. before which aH causes are brought in
the first instance."


From the decision of this court a party was entitled to
appeal to a court called "The Court of Appeal, 01' Cour
d'Appel devant plus de Jurés," This court was, upon
the recommendation ofthe commissioners, abolished.


A further and final appeal lay to the Court of Judg-
ments, in which not less than seven Jurats must sit, toge-
thel' with the Bailíff or bis Lieutenant. This appeal was to
be prosecuted within ayear and a day. Nine days in each
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 patriotic 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 effect. By an Order
in Couneil dated 13th May, 1823, the Cour d'Appel de-


(1) For a description of this proceeding, see the head "Insolvency" in tbe
accolllIl of Jersey, ante; p¡ 702.


zz2




708 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 writíng 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
cfl O. 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 aH cases founded on an affidavit taken
before the bailííf, Iíeutenant-baíIíff, 01' before any one jurat
of the court; and that all persons, whether fondés en héri-
tage(3) 01' not, be equally liable to arrest for debts due
on promíssory notes, bilIs of exchange, 01' 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 ayer 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 all His Majesty's subjects resident in the
island ayear and a day."


(2) A subsequent communication
from lhe Bailitf of Guernsey stoled,
that lhere was anulher mude of ap-
peal, against Ibe evils of whicb tbis
arder did not afford a ,'emedy; Ihi,
was " lhe appeal by Doleance, wbich
by an Order in Council of lhe 27tl,
June, 1627, is granted to every per-
son giving bail to pay eo.ts and :{;lO
lo Ihe poor." 1t was suggesled that
Ihis sum of 1:10 sbould be raised
lo .i40 or .i50, to be forfei ted to Ihe


¡esponden! on failure of tbe appeal.
'fhis excellent suggeslioll docs not ap-
pear lo have beell adopted_


(3) }cmdGs en héritage, tha! is,
possessed of real property, which in
Guernsey means lands or houses, or
rents issuing lherefrom. The posses-
sion of ¡his pl'Operly entilled the pos-
sessor to many valuable privileges,
Same of which were abulished by Ibis
and another Order in COllllcil.




GUERNSEY. 709


Registration.


Contracts are registe red 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 01' 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 enrolIed until tbey bave
been acknowledged before the Bailiff 01' his Lieutenant
and two Jurats, and they will tben take place from the
date of such acknowledgment and enrolment j and in the
event of the debtor "renouncing his estate" (becoming
bankrupt) wiII bave preference over other debts not so
enrolIed.-Warburton's Treatise, edito 1822.


Descent.
Real estate cannot be devised by will, but must de-


seend to the heirs, aeeording to the custom of the island.
Children born out of wedlock are deemed legitimate, ir


their parents afterwards marry.


Criminal Matlers.
In all criminal matters, except those of treason, coining,


and striking tbe Bailiff or Jurats in the execution oi'
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, 01' Attorney-General, and the Con-
troIler, 01' Advocate-General j and these offices are gene-
rally filled by members of the oldest families in the island.


(4) Tbat is, tbe owner ¡ets 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 Regulations.
The following important regulation gave the Channel


Islands a 1'ight to enjoya direet trade with the East Indies
in the article of tea. 3 & 4 Wm.4, e. 101, s.!'l. And be
it further enaeted. that it shall be lawflll to import any
tea into any of the islands of Guernsey, Jersey, Alderney
01' Sark. from the Cape of Good Hope and the plaees
eastwa1'd 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 1'e-
gulate the trade of the British possessions abroad.




( 711


-


MALTA, ancientIy Melita, is an ¡sland in the Mediterranean
nearly opposite to the southern extremity of Sicily. It lies
in abont the 36th degree of north latitnde, and the 14th
and 15th of east longitude. Jt is distant sixty miles from
Cape Passaro, the nearest point of Sicily, 190 from Spar-
tivento in Calabria, and abont 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-
ncial extent. The soiI is very thin, great part of it having
been brought from Sicily, and the inhabitants daily labonr
to add to its amonnt 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 Citta Vechia. The
harbonr of VaIetta is double, and is one of the nnest in
the world. The city is built on a narrow tongue of land,
having the castle and light of Sto Elmo at its extremity,
and an admirable port on each side.


The island of Gozo, or Gaudisch as the natives call it,
is eight miles long, six miles broad, and twenty in circum-
ference. Though thinly inhabited it contains no town
hut has six villages and a strong fort in the centre of the
is\and.-Encyc. Metr.; Mace. Dict. of Comm. 2d ed.


HISTORY.


Malta was first known as baving been ruled by an AfrÍ-
can of the name of Battus, who was an enemy of Queen
Dido, and subdued by the Carthaginians. From them it
feIlinto the hands of the Romans, and the Saracens severed
it from tbeir empire. Roger, the Norman King of Sicily,
having in bis turn expelled them, it remained attached to
the 8icilian monarchy (a diploma oi Lo~is VII., in 1350,


/,fo




71~ MALTA.
having united Malta and Gozo to the domioions of Sicily,
and having decIared that he was their Lord Suzerain,) till
the Emperor Charles V. gave it to the Knights of St. John,
after their expulsion from Rhodes. The French became
masters of it in 1798, and the inhabitants having in 1800
risen upon and blockaded the French, and having been
afterwards assisted by the English and Portugueze fleets,
the French Governor finally surrendered to the English
commander. It was eaptured after a long bloekade on
the 5th November, 1800. It had been stipulated by the
tl'eaty of Amiens, that thcse two islands were to be deli-
vered up to thcir original sovel'eign ¡ but various diffieul-
ties having been opposed by the then Freneh government
to the flllfilment of the treaty, and in the mean time a new
wal' haviog been commenced in 180~, these dependeneies
have continued, and by the tI'eaty of Paris on the 30th
May, 1814, beeame permanentlyannexed to the British
crown.-Galt's Travels in the Mediterranean¡ Coekburn's
(~eneral) Voyages; and Colonel Colquhoun's British Em-
pIre.


The l'esident population of both islands amounted in
1831 to 12,000. The l'evenue, aceol'ding to MI'. Col-
quhoun, is equal to .i'lOO,OOO. MI'. M'Culloch adds,
that the expenditure, exclusive of that incurred io Eng-
land 00 account of the ¡sland, 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 ,f2,000,000;
but that estimate was made at a time when the island was
used as one of the depóts of manufactures inteoded to be
introduced into the continent of Europe, in contl'avention
of Napoleon's decl'ees.-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 Histol'y 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." MI'. Eton
appears to have been strongly inclined to favour the call
of the Maltese for a popular constitution, his authority
therefore may perhaps be questioned, but his assertions
of fad are generalIy supported by l'efel'ences to the ol'igi-




MALTA. 713
nal documents, and there is little reason to believe that his
opinions were suffered to influence his statements. Ris
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 principalIy 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. It8 existen ce and functions
are acknowledged and confirmed by aH their Suzerains.


The gradual encroachments on its l'ights 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 lormed 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 controHing
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 wel'e always limited. Sometimes he has
been nominated solely by the Suzerain, sometimes by the
Maltese; but the more general and constitutional practice
seems to nal'e oeell to 811bmit t(l the Suzel'ain 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 of the Universita; and whenever it
became necessary nominated procurators, syndics, &c.


It appointed amhassadors to sovereigns to negociate




714 MALTA.
on public affaírs, and to the Suzerains to ask favours or
make complaints, it being tbe particular duty of tne coun-
eil to defend the popular rights and privilegp.s.


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 composcd) to form a
Consiglio Partieolare, which was annually elected by Ser u-
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 527th to appoint proper persons to hold offices.
The appointment of an public officers was only for one
year, when others were appointcd in their plac"es. 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 Vniversita
(who compose that magistracy), the Acataponi, who were
then of the first families, latterly they are a kind of asslst-
ant in the markets and in the afl'aÍl's of the Vniversita,
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 Vniversita (or Jurats) to exercise the functions of the
Consiglio Particolare, and elect the juclges, &c. by seru-
tinio.


The Consiglio Popolare was by the Sicilians, and by
the Maltese themselves, frequently called the Council of
the City, Citta Vecchia (Medina, or Citta Notabile) by cx-
cellencc called The City.


The Capitano di Virga (who was the royal officer or
sherifl' 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 thc military commander and minister of the
King. He was often styled the Captain of the City.
Valctta was not then built.




MALTA. 715
The Castellano, 01' Governor of the Marine CastIe, had


no right to interfere in the affairs of the Universita 01' 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 scruti"io
by a majority of votes.


Mastm was the golden book or register of noble aml
distinguished famílies. 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 th.e 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 latterly had put into this office his
own crea tu res. whom he removed at his pleasure, giving
no reason.


With respect to the persons who composed the Con-
siglio Popolare, it appears by ancient records, that before
the coming of the order of St. John,and many years
afterwards, this body was composed of a certain number
of persons of families of the first and second classes, and
the representatives of towns (casal) elected by the people,
who were called constables (contestabili, 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 ¡nterest of the nation, and in which the cIergy
had any concern, the vicars, bishops, and the priests,
representatives of the clergy, were also admitted.


Strangers domiciliated five years, and married to Mal-
tese women, were frcquently 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
01' artisans.


Gozo. 11 . t


This island was governed in every respect the same as
Malta. It had its own Consiglio Popolare, and every
üthet· 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, 01' 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 or 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, 01' even augmented the punishment
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
law, certain thieves to be hanged, who had been by three
concurring sentences condemned to be banished to Sicily,
and they were executed.


To the Judge of Appeal were referred also causes ap-
pealable from the Government Court of Gozo; from the
office of First Appeal at Citta Notabile; from the office
formerly called Siniscalia, (Sénéchals Court, which had
exclusive jurisdiction over aH pel'sons belonging to the
palace, to the cu stom-house, and to the U niversita) j from
the consola lo del mare, (a commel'cial court,) and other
subaltern tribunals.


In capital causes and those of high crimes, (delitti
gravi), the three judges (criminal, civil and judge of ap-
peal) were joinedj 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, receÍved 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 Ball as Governor for the
King of the Two Sicilies, and by Messrs. Cameron and
Ball, as Civil Commissioners, are nevertheless the only
rule of justice and the lex scripta actually in force.


A new code of 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 01' 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 01' 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 Judge. no one having a right to interfere.


From the documents the Judge forms what is called
compilazione di processo.


The Judge of Appeals and tite Judge Surrogate have
only their papers to guide them. They cannot dispute
the facts as stated by the Criminal Judge, nor can they




7lS MALTA.
examine witnesses, 01' proceed on any other grounds with-
out an expl'ess 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 fUl'llish 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' ex,tra-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 Citta Notabile and of Gozo are constituted
much in the same manner.


Castellano.
The President 01' Castellano hoMs 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 aH times been unpopular, called Signatura; the mem-
bers are properly the Privy Councillors of the Grand·,
Master, and are now those of the Civil Commissioner,
theyare styled Uditori. To this council are delivered
petitions complaining of injustice 01' delays, 01' for obtain-
ing offices or place s under govel'llment, 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, or ecclesiastics, or
gentIemen who have studied the law. They rank before
the tribunals.


The Uditori hold their place s duríng pleasure, and
theyare are often changed.


This councíl, properly constituted, would be a check
upon the tribunals.


Tite Universita.
This assembly, once the supreme magisiracy, and still


called "The Magistracy," has at present only a limited
jurisdiction in the police of the markets. It is composed
of four 01' n.ve Jurats (Giurati) and a Treasurer. There




MALTA. 719
formerly was a fuml belonging to the Universita, from
which it paid interest to those who put their money into
it, but the French seized this fund, and ruined many fami-
lies.


The Jurats supply the island with corn, wine and oil.
N o one is allowed to seU those articles in the island be-
sides the Universita j they fix the price at which they
seU, with the approbatíon of the Civil Commissioner.
The profits arising from the sale of corn produces a consi-
derable annual revenue to government, for whose account
the purchases and sales are now made. There ought
always to be two years' provisions in Malta.


Appeals.
Byan order in Council 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 following are the important parts of the order.


"Whereas by the law at present in force in the isle of
Malta and its dependencies, no provision for permitting
and regulating appcals from the Supreme Council of Jus-
tice in and for the said island and its dependencies, and
it is necessary to make provision for regulating such ap-
peals j 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' before the Supreme
Councíl of Justice in the said island of Malta, may ap-
peal to Bis Majesty, his heirs and successors, in his 01'
theil' Privy Council, in such manner, within such time,
and subject to such rules, regulations and limitations as
are hereinafter mentioned .


•• In case any judgment, de cree, arder, al' sentence fol'
01' in respect of any sum 01' matter at issue aboye the
amount al' value of 1:1000 sterling, 01' in case sueh judg-
ment, decree, arder, 01' sentence shall involve directly 01'
indirectly any claim, 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 shall have been pronounced, made or
given, apply to the said Snpreme Conneil of Justice by




720 MALTA.
petition fol' Ieave to appeal therefrol11 to His Majesty, his
heirs and successors, in his 01' theil' Privy Council.


"And in case such leave to appeal shall be prayed by
the party 01' pariies who is 01' are directed to pay any
SUl11 of money 01' perform any duty, the said Supreme
Council of Justice shall and i¡; hel'eby empowered eithel'
to direct that the judgment, decree, arder al' sentence
appealed from shall be cal'ried into execution, 01' that the
execution thel'eof 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 pl'ovisions as to security to be given by thé
parties for the performance of the order of the Pl'ivy Coun-
cil, if the execution is directed to be executed 01' to be
stayed, are then made, and secul'ity is also directed to be
given by the appellant fol' the due prosecution of the ap.
peal and thé payment of costs. The last-mentioned secu-
rity must be entered into "within one month from the
date of such petition fol' leave to appeal," and "then
aud not othel'wise the said Supreme Council of Justice
shan aIlow the appeaI."


The usual reservation is then inserted, of p(lwel' by the
crown to admit the appeal "upon such terms and subjeet
to such limitations, restl'ictions, arrd l'egulations as His
Majesty, his heirs and successors, in his 01' theil' Privy
Council, shalI think fit."


In cases where appeals are alIowed, the Supl'eme
Council of Justice is dil'ected to certify and tmnsmit a
true and exact copy of all evidences, proceedings, judg-
ments, deerees 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 cel'tified undel' the
seal of the said councíl.


The Supl'eme Council of J ustice is lastly dil'ected "to
confol'm to and execute 01' cause to be executed such
order 01' orders as shall 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 Supl'eme Council
of Justice would 01' might have been executed."


By a decl'ee of the Supreme Council pronounced on
the 127th 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 leave to appeal should
not be granted. Upon the said citation both parties are
heard, and the Supreme Council gl'ants 01' refuses leave
according to law. Both palties agree as to the copies of
the proceedings that are to be transrnitted.


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. 'rhe
author has not be~n able to learn whether the recom-
rnendations of the cornmissioners here noticed have 01'
have not been carried into effect.


On 1st Novernber, 1830, a report was presented on the
revenue and expenditure of Malta.


In the course of this report the commissioners reCOlll-
mended that the Commercial and Bankrupt Court should
be consolidated with the Civil Court: that thel'e should
he but one local court of appeals fol' an civil causes, aml
that a Chief Justice and four other Judges should form
the judicial establishment of the island. And further, that
there should be but one CrowlI Advocate, and one Advo-
cate for the Poor, and four Magistrates for the inferior
jurisdiction. - House of Commons' Papers, December,
1830, No. 64, p. 11.


The Lieutenant-Governol' has .i'4000 a-year.
The Chief 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 Dittot . . . . . 150 O
1 Advocate of the POOl' 83 7
1 Dittot 42 12


• Recommended by the commis- t Recommended tu Le <lióculltinll·
siollcrs to be f€duced in number, all<l ed.
to receive a salary of í450 cacho


3A




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 Supreme Council qf Jústice.


The Supreme Council of Justice consists of a President
and four members.


TIte Court for Piratical Offences.
The judges constituting this court appear to receivc


no emoluments as such.


TIte Court of Special 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 saIary,
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 1:205 15s.-House of Commolls Papel'.




( 72S )


THE ISLE OF MAN.
-


'fHE Isle of Man lies midway between England, Scot-
Íand and !reland. 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 settled against the claim of Ireland, by the
i'act 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 equabIe than that of
EngIand 01' Ireland, is not favourable to vegetation, on
aecount of the prevalence oi' easterly winds. The herring
fishery is earried on to a considerable extent.


IIISTORY AND CONSTITUTION.


This island was held by the Kings of Northumberland
tiU it ",as eonquel'ed by the Norwegians. In 122G it
was purchased from them by Alexander the Third of
Seotland. It was afterwards held by Lord Serope, 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-
eient lords, and on the death of Charles Earl of Derby in
1735, it beeame vested in James Duke oi' Athol, as heir-
general of Earl James. In 1764 it was sold by Charles
Duke of Athol to tlle British govermnent, with an its
rights oi' sovereignty, for 1'70,000; and in 1792, on the
ground that it lIad been purchased mueh below its value,
an additional eompensation of 1'3000 a-year was granted
to the Dukes of Athol for ever.


Tbe island is ruled by a Governor, a Council for public
affairs, and twenty-four persons, forming the House 01
Keys, so called, as it is said, from their unlocking the
laws. These persons were originally representatives
chosen by thc people, but are now a self-elected and per-
manent body. Together with the two Deemstel's (the


SAZ




ISLE OF lI!AN.


judges of the northern and southern districts of the
island, who dedded causes as they deemed(1) most eou-
seientiously, by wbat were termed tbeir Breast Laws),
they formed the Tinwald Comt, so named from the Iee-
laudie Ting, an assembly, and wald a fenee.' This eourt
meets annually in the open air on the Feast of Sto John
the Baptist, and is a eourt of general oyer and terminer.
In this general meeting all new laws, the aets of Tinwald,
are promuIgated.


The Deemsters are judges both in civil and criminal
cases, and their oath on entering offiee 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 Heet engaged in the herring 6shery 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 Annuus 01' eoroner, whose duties resemble
those of a sheriff: and as many Moats and Captains 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
Iaws and customs of their own, though many of them
hoM proportion 01' bear sorne analogy to the Iaws of Eng-
Iand, and probabIy were at 6rst and originally, seeing the
kingdom of Norway as well as the Isle of Man have
ancientIy 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 reaIm 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 Coke says, 41"sl. thal Ihe word Deemsters is derived from the
Saxon word Dema, which itself means a judge.




75Z5 )


sourrHERN AUSTRALIA.


-


AFTER the preceding matter had been placed in the printer's
hands the Southern Australian Bill, referred to at page 672, was
passed 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 Act to empower His llfajesty lo ereet South Australia into a
British Province or Provinces, and to pr01'ide for t/Ie Coloniza-
tian amI Gavernment thereq[. [15th August, 1834.J


WHEREAS that part of Australia which 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 80uth latitude, together with the islands adjacent thereto, consists of
waste and unoccupied lands which are supposed to be fit for the purposes
of colonization: And whereas divers of His Majesty's subjects possessing
amongst them considerable property are desirous to embark for the said
part of Australia: And whereas it is highly 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
8hould be permallcntly established: Be jt therefore enacted by the King's
most ExceIlent 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 adviee of his Privy Couneil, to crect within
that part of Australia whjch lies between the meridians of the one hun-
dred and thirty-second and one hundred and forty· fir8t dcgrees of east
longitude, and between the Southern Ocean and the twent-y-six degrees
of south latitude, together with aH and every the islands adjacent thereto,
and the bays and gulfs thereof, with the advice of his Privy Council, to
cstablish one or more provine es and to fixthe respective boundaries ofsuch
provinees; and that al! and every person who shall at any time hereafter
illhabit or reside witbin His Majesty's said province or provinees shall be
free, and shall not be subject to or bound by any laws, orders, statutes, or
eonstitutions whieh ha ve been heretofore made, or which hereafter sbal!
be made, ordered, or euacted by, for, or as the laws, orders, statutes, Ol"
constitutions of any other part of Australia, but shall be subject to and




7526 SOUTHERN AUSTRALIA.
hound to obey sueh laws, orders, statutes, and constitutions as shaIl from
time to time, in the manner hereinafter directed, be made, ordered, and
enacted far the government of His Majesty's provinee or provinees of
South Australia.


2. And be it further enacted, that it shall and may be lawful for His
Majesty, his heirs and suecessors, by any order or orders to be by him or
them made with the advice of his or their Privy Council, to make, or-
dain, and, subject to such conditions and restrictions as to him and them
shall seem meet, to authorize and empower any one or more per-
sons resident and being within any one of the said provinces, to make,
ordain, and establish all such laws, institutions, or ordinanccs, and
to constitute snch courts, and appoint such officers, and also such chap-
Jains and c1ergymen of the Established Church of England and Scotland,
and to impose and levy such rates, duties, and taxes, as may be neeessary
for the peace, order, and good government of His Majesty's subjects.and
others within the said provinee or provinees; provided that al! such
orders, and alllaws and ordinances so to be made as aforesaid, shall be
laid before the King in Couneil as soon as conveniently may be after the
making and enacting thereof respectively, and that the same shall not in
anywise be contrary or repugnant to any of the provisions ofthis aet.


3. And be it further enacted, that it shall be lawful for His Majesty,
his heirs, and suecessors, 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 Jit persons to be commissioners to carry certain
parts of this act, and the powers and authorities hereinafter contained,
¡nto execution, and also from time to time at pleasure to remo ve any of
the commissiOllers for the time being, and ullon every 01' any vacancy in
the said number of commissioners, either by removal or by death 01'
otherwise, to appoint sorne other Jit persons to the said office; and until
such appointment, it shan be lawful for the sun'ivingor continuing com-
missioners 01' commissioner to aet as if no such vacancy had occurl'ed.


4. And be it further enacted, that the said commissioners shall be
styled "The Colonization Commissioners for South Australia;" and the
said commissioners 01' any two of them may sit from time to time, as they
deem expedient, as a Board of Commissioners for carrying certai.n parts
of this act into execution.


5. And be it fUl'ther enaeted, that the said commissioners shall caRse
to be made a seal of the said board, and shall cause to be scaled or
stamped therewith an 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 01' stamped with the seal
of the said board, shall be received as evidence of the same respectively
without any further proof thereof; and no such rule, order, or regulation,
01' copy thereof, shall be valid, or have any force 01' effcct, unless the same
shall be so seaJed Ol' stamped as aforesaid.


6. And be it further enaeted, that the said commissioners shall and
they are hereby empowered to declare all the lands ofthe said province or
provinces (excepting only portions which may be reserved for roads and
footpaths) to be public lands, open to purehase by British subjects, and to
make such orders and regulations fol' the surveying and sale of such pub-




SOUTlIERN AUSTRALIA. 727
Hc lands at such pl'¡ce as the said commissioners may from time to time
deem expedicnt, and for the lctting of the common 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 such orders and rcgulations, and to employ the monies from time
to time received as the purchase-money of such lands, or as rent of the
common ofpasturagc of llnsold portions thel'eof, in conducting the cmigra-
tion of poor persons from Great Britain or Ireland to the said province or
provinces: provided always, that no part of the said Pllblic lands shall be
sold exccpt in public for ready money, and either byauction or otherwise
as may seem best to the said commissioners, but in no case and at no
time for a lower price than the sum of twclve shillings sterling per
English acre: provided also, that the sum per acre which the said com-
missioners may declare during any period to be the upset or selling price
at which public lands shan be sold shall be an uniform price; (that is to
say,) the same price per acre whatever the quantity or situation of the
land put up for sale: provided also, that the whole of the funds from time
to time receivt>d as the purchase·money of the said lands, or as the rent
of the common of pastnrage of unsold portions thereof, shall constitute an
" Emigration Fund," and aball, without any deduction whatsoever, except
in the case hereinafter provided for, be employed in conveying poor
cmigrants from Great Britain or Ireland to the said province or pro-
vinces: provided al so, that tbe poor persons WIIO shall by means of tbe
said "Emigration Fund " be conveyed to the said province or provinces,
shall, as far as possible, be adult persons of the two sexes in e'lual pro-
portions, and not exceeding the age of thirty years.


7. And be it furtber enacted, that no poor person having a husband 01'
wife (as the case may be), or a child or children, s11all, by means of the
said " Emigration Fund," obtain a passage to the said province or pro-
vinces, unless the husband or wife (as the case may be), or tbe child
or children of such poor person, shall also be conveyed to the said pro-
vince or provinces.


8. And be it further enacted, that it sha1l be lawful for his Majesty, his
beirs and successors, by warrant under the sign mannal, to be counter-
signed by His Majesty's Principal Secretary of State for tbe Colonies, to
appoint a commissioner of public lands to be resident in the said colony,
and to act under the orders of tbe said Board of Commissioners as hercin-
after directed.


9. And be it furthor enactad, that the said commissioners sl18ll and
they are hereby empowered to appoint such person or persons as they
may think fit Treasurer, Assistant-Surveyors, and other officers, for car-
rying this act ¡nto execution respecting tbe disposal of the said public
lands and the purchase-money thereof, and to remove such Treasurer or
Assistant-Surveyors or otber officers at their discretion, and on every or
any vacancy in the said office of Treasurer, Assistant-Surveyor, or other
officer, by removal or by death or otherwise, to appoint, if they see fit,
sorne other person to tbe said office.


10. And be it furtber enacted, that it sha1l and may be lawful for tbe
said commissioners to delegate to the said Colonial Commissioners, As··
sistant-Surveyor, or other officer, or to any of them, 8uch of tho powers
and allthorities with respect to tbe disposal of the public lands of tbe




728 SOUTHERN AUSTRALIA.
saíd province or provinces as the said commissioners shall think fit j and
the powers and authorities so delegated, and the delegation thereof, shall
be notified in auch manner, and such powers and authoritics shall be
exercised at snch places, for such periods, and under such eircumstances,
ano subject to such regulations, as the said eommissioners shall direet j
and the said commissioners may at any time revoke, recalI, alter, or
vary aIl or auy of the powers and authorities which shalI be so delegated
as aforesaid.


n. Aud be it fUl'ther enacted, that alI monies uuder the controul of
the said Board of Commissioners shall be received and paid by the Trea-
su.rers who may be appointed by the saíd boal'd, and who shaIl give
security for the faithful discharge of their duties to such amount and iu
such mauner as to the said eommissioners may seem fit.


12. And be it further enacted, that an accounts of the said Treasnrer
shaIl be submitted to the Lords of His Majesty's Tl'casury, and be audited
in the same mauner as olher public aecouuts.


13. And be it further enacted, that the said commissioners may and
theyare hereby empowered from time to time to appoint a secretary,
treasurer, and alI such cIerks, messengers, and officers as they shall think
fit, and from time to time, at the discretion of the said commissioners, to
remove such secretary, treasurer, cIerks, messengers, and offieers, or any
of them, and to appoint others in thei1' stead.


14. And be it further enacted, that every commissioner and colonial
commissione1' to be appointed from time to time shalI, before he shalI
enter upon the execution of his offiee, take the folIowing oath before one
of the Judges of his Majesty's Court of Common Pleas, 01' one of the
Barons of the Court of Exchequer, 01' (iu the case of sueh colonial com-
missioners) before the judge of one of His Majesty's Courts in the said
province or proviuces; (that is to say,)


, 1, A. B. do swear, that 1 shall faithfulIy, impal'tialIy, and honestly,
, according to the best of my skill aud judgment, execute and fulfil all the
, powers and duties of a eommissioner [or colonial commissioner, as the
, case may be,] under an aet passed in the fifth year of the rcigu ofKing
, William the Fourth, intituled [here set forth the titIe oftbis aet].'


15. Provided always and be it fnrther enactecl, that the salaries to be
paid to all suc\¡ persons as may be appointed to any offiee under this aet,
shaIl 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 enacted, that the said commissioners shalI, at
least once in eve1'y year, and at such othor times and in such form as
His Majesty's Principal Secretary of State for the Colonies shall direct,
submit to the said Secretary of State a full and particular report of tbcir
proceedings; and every such report shalI be laid before both Houses of
Parliament within six wecks afier the receipt of the same by the said
Secretary of State, if Parliament be then sitting, 01' if Parliamcnt be uot
Bitting, then within six weeks afier the next meeting thereof.


17. Anu be it further enacted, that it shall and may be lawful for thc
saiel comlllissiouers, previously and until t.he sale of public \\1\\\110 in the




SOUTHERN AUSTRALIA. 729
said provjnce shall have produced a fund sufficient to defray the cost of
conveying to the sajd provine e or provinces, from time to time, such a '
number of poor emigrants as may by the said commissionets 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 annnm, any sum or sums of money not exceeding .e50,000, for
the sole purpose of defraying the costs of the passage of poor emigrants
from Great Brituin 01' IreJand to the said province 01' provine es, by
grallting and issning, to any person or persons willing to advance such
monies, bonds 01' obligatory writings nnder -the hands and seaJs of the
said commíssioncrs or of any t\Vo of them, which bonds or other obliga-
tory writings sl1811 be termed "South Australia Public Lands Sesnri-
tíes;" and al! snch sum 01' sums of money, not exceeding 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
Cl'edit of and be deemed a charge npon the whole of the fund to be re-
ceived as the purchase-money of publie lands, or as the rent of the com-
mon of pasturage of unsold portions thereof; and it shall and may be
lawfnl for the said commi~sioners fi'om time to time to appropriate all or
any part of the monies which may be obtained by the sale of public
lands in the said province or provinces to the paymcnt of intcrest on any
such sum or sums borrowed and taken up as aforesaid, 01' to the repay-
ment of such principal sum 01' sums.


IS, And be it further enacted, that for defraying the necessar)' costs,
charges and expenses of fonnding the said intendcd coJony, and of pro-
viding fol' the government thereof, and fol' the expenses of the said com-
missioners (exceptillg always the purpose whereunto the said emigration
fund is made solely applicable by tbis aet,) and for defraying aU 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 no! exceeding
&10 per cent. per annum, any sum Ol' sums of money required for the
purposes last aforesaid, not exceeding in the whole the sum of &200,000,
by grantillg or issuing to any person 01' persons willing to advance such
monies, bonds 01' obligatory writings under the hands and seals ofthe said
commissioners or any two of them, which bonds 01' other obligatory
writings shaIl be termed "South Australia Colonial Revenue Securities;"
and al! such snm 01' sums of money by the said commissioners so borrowed
and taken up as last aforesaid, shall be and is and are hereby declared to
be a charge upon the ordinary revenue 01' produce of all rates, duties
and taxes to be lcvied and collected as hereinbefore directed within the
said province 01' proviuces, and shall be deemed and taken to be a public
debt owing by the said province to the holdera of the bond or bonds 01'
othel' writings obligatol'Y by the said commissioners granted for the pur-
poses last aforesaid.


19. And be it ful'ther enacted, that jt shaIl and may be lawfnl for the
said commissioners at any time to borrow 01' take up any sum 01' sums of
money fol' any of the purposes of this act at a lower rate of interest
than any security 01' securities previously given by them under and by
virtue of this aet whieh may then be in force shall bear, and therewith to
pay off and discharge any existillg security 01' secnrities bearing a higher
rate of interest [lS 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 seenrities,
then and in ¡hat case, but not otherwise, the public lands of the said pro-
vine e or provinces then remaining unsold, and the monies to be obtained
by the sale thereof, shaIl be deemed a collateral seeurity fOl" 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 provinee
or provinces shaIl be employed in defraying the principal or interí'st of
the said colonial debt so long as any obligation ereatcd by the said South
Australian Publie Lands Securities shall remain undischarged: provided
also, that in case, after the discharge of al! obligations created by the said
South Australian Public Land 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
revenue seeurities, then and in that case the amount of sueh dedllction
from the said emigration fund shall be deemed a colonial debt owing by
the said province or provinces to the Colonization Commissioncrs fOl"
SOllth Australia, and be charged npon 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 olle of such commissioncrs, or of theil' secretary, clcrk
or clerks for the time being; and that no aetion or suit to be brought or
commenced by or against any of the said commissioners in the name 01'
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 act of such commis-
sioucr, secretary or clerk, or any of them; without the consent of the said
commissioners, but that any one of the said commissioners, or the secretary
or clerk for the time being to the said cOlllmissioners, 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 berein contained shall
be deemed, construed or taken to extend to make the commissioners who
shall sign, execnte, 01' give any of the bonds or obligatory writings so
hereby authorized 01' directed to be given personalIy, or their respective
estates, lands, or tenemen ts, goods and chattels, or such secretary or
clerk, or tbeir or either of their lands aud tenements, goods and chattels,
liable to the payment of any of tbe monies so borrowed and seellred by
reason of their giving any such bonds or securitiesas aforesaid, 01' of theír
being plaintiff or defendant in any such action as aforesaid i but that the
costs, charges and expenses of every such commissioner, secretary or
clerk, by reason of baving been made plaintiff or defendant, or for any
contraet, act, matter, or thing whatsoever, made or entered into in tlle
bond fide execution of this act, from time to time to be defrayed by the
said commissioners ont of the money so borrowed and taken up as afore-
said.


22. And be it further enacted, that no person or persons convictcd in
any court of justice in Great Britain or Ireland or elsewhere, shaIl at any
time or under any circumstances be transported as a conviet 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 His


Majesty, by and with the advice of his Privy Council, to frame, constitute,
and establish a constitution or constitutions of local government for any of
the said provinces possessing a population of 50,000 souls, in such manner
and withsuch provisoes, limilationsandrestrictions, as shall lo His Majesty,
byand with the advice of his Privy Council, be deemed mect and desirable:
provided always, that the mode hereinbefore directed of disposing of the
public lands oi' the said province or provinces by sale only, and of the
fund obtained by the sale tbereof, shaIl not be liable to be in anywise
altered or changed otherwise than by the authority of His Majesty and
the consent of parliament: provided also, that in the said constitution of
local government for the said province or provine es, provision shaIl be
made for the satisfaction of the ohligations 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 furtller enactcd, that for the purpose of providing a
guarantcc or security that no part of th" expense of founding and go-
verning the said in tended colony shall fall on the mother country, the
said commissioners shall and are hereby empowered and required, out of
the monies borrowed and taken up as aforesaid on the security of the
said South Australian Colonial Revenue Securities, to invest the sum of
.f:20,000 in the purchase of Exchequer bilIs or other government secu-
rities in England, in the names of trustees to be appointed by Ris Ma-
jesty; and the said trustees shall hold the said Exchequer bilis, or other
government securities, so long as may seem fit to His Majesty's Principal
Secretary uf State fur the Colonies; or shall, in case it shall seem fit to
IIis 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 Itevenlle Securities are hereby made
applicable: provided al ways, that if the said Secretary of State should
dispuse of any part of the said ~20,000, a sum or sums equal to the sum
or sums so disposed of shalI be invested in the names of the said trustees
by the said commissioners, so that the said guarantee or security fund of
.f:20,000 shall not at any time be reduced below that amount: provided
always, that the interest and dividends arcruing from time to time upon
the said Exchequer bills or other government securides, shall be paid to
the said commissioners, und by them be devoted to the purposes to which,
as hereinbefore direeted, the monies to be raised by the issue of the
aforesaid South Australian Colonial Revenue Bonds are made applicable.


25. And be it further enacted, that if after the expiration of ten
years from the passing of this aet the population of the said province or
provinees shall be less than 20,000 natural bora subjects, then and in
that case all the public lands of tbe said provincc or provinces which shall
then be unsold shall be liable to be disposed of by Ris Majesty, his heirs
and successors, in such mallller as to him or them shall seem meet: pro-
vided always, that in case any of the obligations created by the said South
Australian Public Lands Securities should then be unsatisfied, the amount
of such obligations shall be deemed a charge upon the said unsold public
lands, and shall be paid to the holders of such securities out of any mo-
nies that may be obtained by the sale of the said lands.


26. And be it further enacted, that until the said commissioners shall,
by the granting and issuing of bonds and writings obligatoryas aforesaid,




732 SOUTHERN AUSTRALIA.
that is to 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' provillces
and othel's shaIl have invested, (either by paymellt to the said commis-
sioners, 01' in the names of trnstees to be appointed by them,) for the
purchase of public lands in the said province or provinces, tbe sum of
~35,OOO, none of the powel'S and authorities hereby given to His Ma-
jesty, 01' to the said commissioners, or to any person 01' persoIis, except as
respects the exel'cise by th~ said commíssioners of such powers as are
required fol' raisíng money by means of and on the security of the bonds
01' securities last aforesaid, and for receiving and in vesting the aforesaíd
sum of .f35,OOO for the purchase of public lands, shaIl be of any effect,
01' have any operation whatsoever.


-----_.




733


COLLECTIONS OF COLONIAL LAWS.


The foJlowing Papel' has been thought worthy of in-
sertion, as showillg at one view the collection of Colonial
Laws known in this country at the time of its date.
Retul'n of Copies of all Puhlic Acts and Pl'oceedings of the Le-


gislative Assemblies pl'inted by the several Colonies, as fal'
as the same can at present be complied with by the Colonial
Department.


26th March, 1828. F. L. GOWER.
Jamaica ••..••...•. , ....••.... Vol. I.


H.
m.
IV.
V.
VI.


VII.
1st PartofVol. VIII.
2d .............. .
3d •..•••......•••


Bahamas ....••.•..............


Antigua .....•................


Barbados ....................... .


1.
U.


IlI.


1.
lI.


m.


MOlltserrat ...............•...............•


SI. Christopher .•••...................•....


Ncvis •.••...•..••.................•...••.


Grenada .•....••........•........ , ....... .


Sto Vincent. ...•.................•.. , Vol. l.
n.


U pper C!lnada ............................ ..


Lower Canada .............•................


N ol'a Scatia .............•................


22 Cal'. 2
1 Gea.3


33 Gco. 3
40 Geo.::>
45 Geo.3
5\ Geo.3
58 Geo.3


,'; Geo.4
6 Geo. 4
7 Geo.4


1729
lb05
tUO\!


1690
1791
180!


1613


1668


1711


1664


1763
1805


1767
1809


1792
18~5


1792
1130,';


17tJ8


to


to


33 Geo. 2
32 Geo. 3
39 Geo. 3
4·t Geo. 3
50 Geo. 3
57 Geo. 3
4 Geo. 4


180"
Hl08
1813


1790
1804
1817


1762


1740


1791


1739


1805
1814
1808
1815


1824
1827


1804
1814


1804




781~ rUELIC ACTS, &C.


Malta, Proclamations anu Govemor's Notices ...•


Cey Ion, Proclamatiolls IInd Regulations ••••••••


Kandyan Enactments ••••••••.••.•••••••.••.•
New Brunswick Acts frum ••••.••••.•••••••.••


1813 to 11l~()
1821 1822
1823 1824
1824 1825


1799 1821
lB~3
1824
1825
1826
1B15 1822
1786 to present time,
in t\Vo vols. continued.




r


INDEX.


A.
ADMINISTRATION, LETTERS 0:1<',105.


ADl\11RALTY, COURT OF, 59-what matters to be sued for in, 76-
fees of oflice!'s in, how to be regulated, 79-appeals from, id. and n.


AFFIRMATlON,81.


ALCALDES-in ordinary, 31B-de Barrio, 319.


ALDERNEY -description of and government, 706.


Al\'G VILLA. See STo CIIRlSTOPIIllR.


A)<NUUS, 724.
ANTIGUA, the chief seat of government for the islands of Antigua, Bar-


buda, Dominica, Montserrat, Nevis, and St. Christopher, 123-
dcscription or, 124-history and constitution, id.-couTts in, 127-
Cour! of ChanceTY, I28-Courtof Appeal and Error, id.-Court of
Common Ple~s, id.-Courts of Complaint, Ordinary, Admil'alty, and
Ring's Beneh, 129-justiees of lhe peace in, I30-coroner, 131-eol-
lection of laws, id.-generallaws of the colony, 132.


APPEALS -historical ol'igin of, 106-rules observed at the Privy Coun-
cil as to entering appeals, lll-petition or, 114-course of prac·
tice in lodging the petition of appeal, 115, et seg. (For the Colonial
COliTis of AlIPeul and the "egulations there mforeed Tespe~ting thern, See
the diffel'ent Colonies.)


ARCHDEACON. (See the title" COllrls" in the different Colonies.)
ASSEMBLY, HOUSE OF-I'esembles lhe Parliament of Grea! Blitain,


38-how elected, 38, 39-power and privileges, 39, 40-acls of, how
confirmed generally, 41; and when lhey contain a suspending c1ause,
44, 45-aets of, where preserved, 45-acls of, mU8t nol (except in
Lower Canada) be repugnant to the laws of England, 26, 40, 52, 53-
what colonies it exisls in, 68. (See viso the a.ccounts of the dijf'erent
Colonies.)


ASSIGNMENT-in bankruptey, elfeet of, 102. (As lo the assignmenl of
debts,judgrnents, 8jc. see the laws of the dij"erent Colonies.)


ATTORl\'IES-howadmitted in the dilferent colonies, 55. (See the ac-
eOll7l!S '?! the COllrts 1.' lhose colonics.)




73G INDEX.
AUSTRALIA, SOUTHERN-note on, 672-s(a(u(e creating the co-


lony, 725.


AUSTRALIA, WESTERN, to be a colony, ]9, n.-Australian Colonies,
account of, 599-deseription of, 664-history, id.-government, 666
-civil judicature, 667- mesne process, id.-Court of Quarter Se ss ion s,
668-Viee-Admiralty Court, 669-laws, id.-coloni'!l acts, id.-
juries, id.-crown debt •• id.-fraudulent conveyanees, id.-Iransfer of
real property, .671-Urder in Council in the nature of a Charler
of Justice, id.


B.


BAHAMAS-description of, 366-history and constitution, 367-Council
and House of Assembly, id.-acts of the legislature, 368-Courts in
general, and their lawand practice, 37l-counsel and attornies, 373
-the General Court, id.-the criminal jurisdiction of (hal court, 374
-its civil jurisdiction, 375-revenue jurisdiction of the Superior Court,
377-Iuferior COUlt, id.-Courts of Appeal and Error, 378-Court of
Chancery and ils l'rac.tice, id.-Court of Ordinary, 380-Court of
Vice-Admiralty, id.-Court of Admiralty Sessions, 381-justices of
the peace, id.-escheats, 382-insolvents, id.-attOlney and solicitor-
general, id.-colonial secrclary, 383-provost marshal, id.-coroners,
384-police magistrates, id.-appeals, id.-foreign judgments and
contraets, id.-absentees, 385-marriages, id.- wills, intestacy, &c.,
386-passes to qllit the colony, id.


BANKR UPTCY -certificate in, 96--effect of assignment in, 102. (As
to the la",s relaling lo bankrupts in different colonies, see those colonies.)


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 or, 175-history
and constitution, id.-origin ofthe 4i per cent. duty, 178-laws, 181-
arresta and underwritings, id.-CourIS, 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, ]92-Conrt of
Appeal and Error, id.-Escheat Court, 193. Criminal Court,-Court
of Grand Sessions, id.-Court of Qnarter 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 eachcolon_~for un acconnt qf the admissioll
'!! barriste,.s practising in the courls tllere.)


BERBICE. See BRITISH GUIANA.


BERMUDAS or SOMERS' ISLA~DS-description of, 388-history
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.-further act thereon, 393-
3ct to preven! frauds and abuses in mortgages, 394-act to make real
esta tes subject to debts, 395-act fOI 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.-joinetl, as to (he adrninistration of jus-


tice, with Sto Lucia and Trinidad, id.-what law in force in, 23-
Court of Poliey, tbe local legislature of, 26, 27, and n.-forrned out of
the unian of the eolonies of Demerara, Essequibo, and Berbice, 123
anrl 236--description of, 236-history and eonstitution.239-Court
ofPolicy and College of Kieze,", 240-Courts, 244-Laws, 246-prae-
tiee of the courts, 248 -oRicers of the conrts, 252, el seg.-Court of
AdmiraIty, 257-0rphan Chamber, 258-wills, 259-mortgages, 260
-hankruptey, id.-Cornmission constituting the united eolony of, 262
Orders in Council fol' the administration of justiee in, 267, 274-
inferior courls of civil justiee in, 284-rules of pmetiee of the Supreme
Court of, 285-rules of practice in the inferior eourts, 288- Order
in Couneil respeeting the qualification of assessors, id.-ordinance re-
lating lo the assessors, 294-amended ordinanql, 297-laws in, 298.


C.
CABILDO, 320.


CANADA, LOW¡'~R-allowed lo make certain laws not conformable to
the laws of England, 26, n., 52.


CANADAS, 397-history and eonstilution, id.-CouRTS IN LOWER CA-
NADA, 401-Courl of King's Beneh, 402-of Vice.Admiralty, id.-
Coroners, id.-Quarter Sessions, id.-saJaries of public oRicers, 403-
COURTS IN l'PPER CANA DA, id.-Court of Kmg's Beneh, 404-
Courts of Assize, 405-Court of Appeal, id.-Distriet Comts, 406-
Conrt of Probate, id.-Surrogate Courts, 407-law oRicer~ of the
crown, id.-justices of lhe peaee, id.~barristers and aUornies, 408-
ecclesiastical establishments, id.-Jaws, id.


CAPE BRETON, 457-historyand constitution, 45B-partieular laws,
id.-wiJls, id.-debts, 459-frauds and perjuries, id.-statute of Jimi-
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 locallaws made and promuJgated, 25··-descrip-
tion or, 466-history anrl constitution, id.-Courts, 467-tenures of
land iD, 467, n.-Ianddroost, 468-heemraaden, id.-Cape TOWD, 471
-Court., id.-insolven! law, 472-sheriff, 473-Courlof Vice-Adroi-
ralty, 474-Policc Court, id.-Court for the reeovery of small debts,
Cape District, id.-Matrimonial Court, 475-Charter of Justice, id.-
ordinance for the jury, 4B1, n.-District Courts, 487, n.


CASTELLANO, 718.


CEREMONIES, UNCHRISTIAN, 6, n.


CEyJ.ON-how acquired and what legislation subject to, 23-what law
in force in, id.-how local ordinances made and promulgated, 25-
description of, 537-history and eODstitution, id .-peeuliar oRices
among the Ceylonese, 541-eourts, 542-Charter of Justice, 544-
supplementary coromission, 567-royal instructions, 569-introduction
of jury túal, 580. .


CHANCERY, COURT OF, 56-can enforee the saJe of lands situated
in the colonies, B3 et seq. and n.-Courts of; in the colonies. (See the
accounts rif the Cottrts nf eách Colony.)


3 B




738 INDEX.
CIIANCELLOR IN THI': COLONIES. See GOVERNOR.


CHARTER GOVERNl\1ENTS, 3, n., 17 and n., lB, 20, and n.


CHARTERS OF JUSTICE, 2,21,22, n., 24, 25-for British Guilna,
267, 274--for the Cape of Good Hope, 475-for Ceylon, 544-for
Gibraltar, 680-for 1\lauritius, 594-for Newfoundland, 423-for
New South WaJes, 627-for Sierra Leone, 499-for St. Lucia, 267,
274-for Trinidad, íd. -for Van Diemen's Land, 653-for Western
Australia, 671.


CODES OF LAWS-promulgated by France, Spain, and Holland, for
the government of their respectiv~ coJonies, 23, 24. See also LA. ws OF
A COLONY.


COINS-laws relating lo foreign, 74.


COLONIES-what, 1, n.-Iaws to which they are subject, 3 and 7-by
whom administered, 3-extent of prerogative, in, 3, 3, n.-acquired by
eonquest, cession, or occupancy, 4, 4, n.-power of changing the laws
of, in whom vested, 6, 7 -acquired by occupancy are ips" jacto go-
verned by the laws of England, 7-executive officers of, in whom the
right of appointing, 9, lO--by what words incJuded in aets of the Bri-
tish Parliament, 16-what particular legal constitutions now prc\,ail
in the coJonies,id.-enumeration of, 18, 19-ac~uired by discovery or
oeeupancy, 21-subject to the legislation of parhament, id.-acquired
by conquest, 22-subject lo the legislation of (he crown, id.-general
mode of government of the dilfcrent, 25-must not make laws repug-
nant to those oí England, id. n.-exception in one case with regard to
Lower Canada, 26, n.-king's prerogative in, 45-expenses of admi-
nistration, how provided for, 48--courts of justice in, 52-how many
have legislative assemblies, 68-acts of parliament imposing reguJations
on, id.-offices in, not to be void on the death of the king, 7B-ac-
counts of, how examined, id.-Vice·Admiralty Courts in, 79-points
of law !!onnected with the, 81-trespasses to real property in, cannot be
the subject of actions in England, 83-note upon Ibis doctrine, id. el
seq.-actions for personal injuries in, may be tried here, 89-contracts
in, bow expounded, 90-interest upon debts contracted in, how calcu-
lated, id.-judgments of courts in, howenforced in England, 92 et
seq. -statute of limitations, how it applies to, 95-colonial certificates
in cases of bankruptcy, 96-coloniaJ transactions, evidence of, required
by lhe courts here, 97-laws of, how proved, 101-assignment under
an English bankruptcy, how it affects property in, 102-residents
in, how to vote for assignees nnder an English commission of bank-
ruptcy,I04-grant of probate or administration here, how it alfects


property in, J05-rec~nt changes in the governments of, 123.
COMMISSIONS-their usual form, 16-nature of a governor's, 27-for


the examination of witnesses in the colonies, 97, et seq.


CONSTlTUTlONS-wbat now prevailing in the colonies.16-ofthose
acquired by conquest but no! subject to the legislation of the cTOwn,
27. (For the constittttion ".f each particlllar colon y, see lhe di.fferent
colonie,.)


COUNCIL. (See also GOVERNoR.)-appointed by tbe crown, 27,35-
members of it ma.y be suspended by the govcrnor, 29 and n., 35, 38-
sometimes sil wilh the governor as judges in Chancery, 32, 37-sit
wilh bim on writs of error from the Common Law Courts, 37-form a
part of the colonial legislatmc, id.-members not required to have a




INDEX. 739
territorial qualification, 38. (For an aCM.ml of the cOImcils in t1.e
colO/lies, see each colony.)


COURTS OF JUSTICE IN THE COLONIES, 52, el seq. (See also
the variOlts co/anies j¡'r an account Ir!" ¡he rom·ts specially established in-
eueh (1' them.)-rules of practice in, 55-judgments in, considered as
fOTeign, 92.


COMMON LA W in force in the eolonies aequired by oeeupancy, 8 and n.


COMMUNE-council of, 588.
CONSIGLIO POPOLARE, 713.
CRIMIN AL OFFENCES-eourt for the trial of, 61-Slalutes relating


to, 75, 77-points of law relating lo the trial of, 81


CROWN. See KING.


D.


DEBTS due from persons in the coJonies to persons in England, how re.
covered, 57-statutes relating to, 75 and n. (2).


DEEMSTERS, 724.
DEMERA RA-Court of Poliey, its local legislatul'e, 26 -how lhat privi.


lege obtained, id. See BRlTISH GUlANA.


DOMINICA-not subjeet to the 4t J;ler eent. duties, 51 and n.-a de·
pendency of Antigua, 123-descnplioD of, 134-history and eonsti·
tution, id.-collection of laws, 138-generallaws of the colony, 139-
courts, id.-Court of Chancel'y, 140-Court of Common Picas, id.-
Complaint Court, id.-Cour! of Ordinary, 141-Court of Vice-Ad.
miralty, id.-Court Melehant, 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 colony.


ESSEQUIBO. See BRITISD GUIANA.
EVIDENCE required as to colonial transactions, 97-offoreign witnesses,


how obtained, 98.


EXECUTlON. See the titles "COURTS" and "LAws" in each colony.


F.


FEES. See the titles "COURTS" and "LAWS" in each colony.


FISCAL. See BRITISH GUlANA, CAPE OF GOOD HoPl!, and MALTA.


FOREIGN COIN-l:¡,ws relating to, 74.


FOREIGN LAWS, proof of, 101.
382




~:C-'-~-"'~''T;",, , .
" ~<
. ,


>~.,
740 INDEX •


. FOUR and a half per cent. duties, what islands subject to, 49, et seq.-origin
of, in Barbados aud (he Virgiu Islauds, id. and 178-J amaica not sub-
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.


GAMBlA, 498.
GANANCIAS, 321.


G.


GIBRALTAR not a COIODY, and why, 2, n.-Iaw in force in, 15, n.-de-
sCriptiOD of, 673-hislory, id .-petition of the iDhabitants for a con-
stitution, and report thereon, 674, et seq.-former constitution, 678
-commission fol' the trial of pirates, 679-laws, 680-government, id.
-Charter of J ustice, id.-Order in Cauncil rel¡¡ting to bankruptcy, 690
-practice of the eourts, 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 tide, rights and duties,
28 et seq. (See also the Introduction)-is chancellor, 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 oI Barhados, 123-description or, 197-
history and constitution, 198-account oC its suecessfnl resistance lo
the 4! per cent. duties, 198, et seg. (see also 51, n.)-ordinances,
205-collection of laws, id.-generallaw of the COIOIlY, 206-eourts,
207-Court of Chancery, id.-the Supreme Court, 20B-juries, 209-
executions, id.-Complaint Court, 210-Coul't of Ordinary, id.-
Court of Admiralty, id.-Court of Appeal and Error, 211-criminal
jurisdiction of the Supreme Court, id.-judges, 212-attomey-general
and barristers, 213.


GUADALOUPE, whynotacolony, 1, n.


GUIANA. See BRITISH GUIANA.


G UERNSEY -not a colony, 3, n.-description of, 705-history and consti-
tution, id.-laws, 706-Courts, Appeals,&c. id.-recent alterations in
the laws, 707-bankruptcy. 708-registration, 709-descent, id.-
criminal matters, id.-law officers, id.-commercial regulations, 710.


H.


HEEl\IRAADEN,468.


HELIGOLAND-how acquired, and what legislatian subject to, 23-is
a mere fortress, 24-description of, 695-present government, 696.


HONDURAS not a colony, 2, n.-for that reasan not enumerated in the
lisl of colonies, 19, n.-description oí, .326-history and con3titution,
327~why not mentioned in modem treaties, id.-Courts in general
and practice in, 329-Supreme Commission Court, 332-Grand Court,
333-Summary Comt, 334-free coloured persons, id.-magistrales,




INDEX. 741
id.-clerk oC the courls and keeper of the records, id.-coroner, 336-
notary, id.-police officer, id.-arbitrations, id.-appeald, 337.


J.


JAMAICA, descriplion of, 338-history and constitution, 339-its inha.
bitants rejeet the arbitrary scheme of government proposed by CharlesIl.
340-they refuse to pay the 4! per cent. duties, and agree to a revenue
act, 341-mode of government of the parishes in, id.-House of As.
semhly, ido-Comts in general and lhe laws 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.-marriage and dower, 347-aliens, id.--wills, 348--mort·
gages and reg;stry, id.-statute of limitations, id.-arrest for d~bt, 349
-notice of proceedings, id.-counse!, id.-Supreme Court of Judica·
ture, 350-criminal jurisdiction of the court, 351-civil jurisdiction,
352-revenue jurisdiction, 354-Comt of Error, 355-Court of Chan-
cery, id.-its powers and practice, 355, et seq.-Court of Ordinary, 358
-Court of Vice· Admiralty and Admiralty Sessions, 359-custodes and
justices of the peace, 361-Court of Quarter Sessions, 362-insolvents,
id.-attorney-general, id.-colonial secretary, 363-provost marshal,
364-coroner, id.-appeals, id.


JERSEY-not a colony, 3, n:-descríption of, 697-history and constitu-
tion, id.-convention of the estates, 698-bailiff, id.-jurats, 699-
courts, ido-Iaws, 701-peculiar laws, 702-insolvency, id.-Iimita-
tions, 703-registration of deeds, 704-rate of interest, ido-choses in
action, id.


JUDGES. See the titles "CouRn" and" HISTORY AND CONSTITUTION"
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
litles "COURTS" and .. LAWS" in each colony.


K.


KIEZERS, COLLEGE OF. See BRITISH GUIANA.


KING may give such colonies the right to hold legislative assemblies, 7-
cannot afterwards legislate for them, ido-cannot legislate for colonie3
acquired by occupancy, 7, 8-appoints the governor and other officers,
erects courts, summons assemblies, &c. 9, IO-foreign acquisitions can-
not be made but for his benefit, 10, n.-has sometimes granted proprietarv
or charter govermnents, 16, 17-was authorized by statute to accept the
surrender of the charler granted to the Sierra Leone Company, 20,21
-then granted a charter of justice, 21-still exercises the rigbt of
legislation over certain colonies, 22, 23, 24 and n.-ordinances of co-
lonies subject to his confirmation or disallowance, 25-in all colonies
issues his commission and instructions to the governor, 27-does not
delegate his power of pardoning in cases of murder and treason, 31-
the extent of his prerogative in the colonies, 38, n; 45--prerogatives,
how exercised in the colonies, 45-limits of, 47-has the right to
give laws to con'lucred or ceded colonies, 46, 58, n.




742 INDEX.
KING'S BENCH, Cour! of, has jurisdiction over the eonduct of gover-


nors, 35-Courts of King's Beneh in tbe colonies, 56 See al so tbe
different colonies.


L.


LANDDROOST. See CAPE OF GOOD HoPE, 46B.


LA WS, FOREIGN AND COLONIAL-proof of, in this eountry, 101.


LAWS OF A COLON Y, 3-how affected by conquest or cession, 33, n'
-power of changing, in whom vested, 66 n.-comInon law in force in
colonies aequired by oceupancy, 8-how mueh of the statute law co-
lonies acquired by occupancy possess, 7, B, 9 and n.-must not be
repngnant to the laws of F.ngland, 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, ee seq.


LIEUTENANT.GOVERNOR, not usuallyappointed now, 34-amount
of his salary, how setded, 34, n. See GOVERNOR.


LIMITATIONS, STATUTE OF, its application to colonial transactions,
95. (For an acco""t ,!fthe Statutes l' Limitatilms in force in different
colonies, see those colonies.)


M.


MALTA, not a colony, 3, n -to 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 ils constitution, 712-
Comiglio Popolare, 713.-Courls and Laws, 716-coroner, 717-fiscal,
7lB-castellano, íd.-Universitii, id.-appeals, 719-salaries of public
officers, 721-inferior court, 722-10rds·lieutenaut, íd.-Couet for Pi·
ratical Offences, íd.-Comt of Special Commission, id.


:MAN, ISLE OF, description of, 723--history and constitution, id.-
Courts, id.-deemsters, 724-annuus or coroner, id.-Iaws, id.


MAURITIUS, howacquired, and what legislation subjectto, 23-what
law in force in, id. alld n.-description of, 5B3-history and constitu-
tion, id.-Iaws, 5B5-Courts, 5B6-codes of laws, 587-Colonial
Couneil, id.-Council of the Comrnune, 5B8-powers of the governor,
5B9-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.-courts, id. and 148-collection of laws,
144-Court of Chancery, 14B-Court ol King's· B~nch, id.-Court of
Commoo Pleas, id.-Court of Grand Sessions, 14B-jlJ<;tices of the
peace,I49.


MORAVIANS, 81.


MORTGAGES,77. (For the laws relatillg t .. mortgages und the regi't"utitm
al mortgage rlecds in diffirent colonies, ,ce those ca/onies.)




I:-;DEX. 74-3


N.
NAVlGATION CODE, 69, et seq.


NEVlS, Statute of Charitable Uses nol 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
-COUl't of Chancery. id.-Court of King's Bench and Common Pleas.
id.-CourtofOrdinary. id.-Small DebtCourt, 157-Court of Vice-
Admiralty, id.-Court of Error, 158.


~1t"W j}1\\1NS,WICK. 412-Courts, id.-registration of deeds and wills,
413-wílIs, íd.-debts, 414-frallGs and pe~uries, id.-rate of interest,
415-absent proprietors. id.-dower, id.-absconding debtors, 416-
laws of the province, id.-estates tail, 417-insolvent deblors, id.


NEWFOUNDLAND. how acquired, and what legislation subjectto, 21-
ael fOI ¡he aum\n\stration oí justice in. 22 and n.-is in future to have
a Representative Assembly, 22, n.-ceTtain laws in, continued, 79 -de-
scription of. 4lS-hislory and cODstilution, id.-Court oí Vice-Admi-
ra1ty. 422-Charter of Juslice, 423--royal instructions as to the admi-
nistration of the government, 435-proclamation as to the constitution
of the general assembly, 449.


NEW SOUTH W ALES, how acquired, and what legislation subject to,
21-description of, 600-history and constitution. 601-civil govern-
ment, 606-Courts. 608-the Supreme Court, 608, el seg.-Circuit
Court, 617-Vice- Admiralty Court, id.-general and quarter sessions,
id.-Courts of Request, 61S-the Archdeacon's Court, id.-Court of
Appeals, 619-trials, 620- attorney-general, judges, banlslers, and at-
tornies, 621-laws. 622-colonial aels, 625-Charter of J uslice, 627.


NORFOLK ISLAND, 600, n. and 672, n.


NOVA SCOTIA, descriplion or, 454-history and eonstitlllion, id.-laws,
456-Courts, id.


O.


OATHS, SI.


OFFICES in Ihe colonies not lo be void on the death of the King, 77.


OFFICERS, colonial, appointed pro lempore, how paiJ, 30, 31,34 and ¡l.
-a.ccounts of, how audited, 7S.-fees of, in Viee-Admiralty Courts,
how to be regulated, 79.


ORDINARY. See GOVERNOR.


ORD1N AR Y -Court of, 59. (See "Iso the tille" Cou"!s" in the different
co{onies.)


P.


l'ARLIAMENT, THE BRITISlI-its power over eolonies, 10 to 16,
and n.-aets of, imposing regulalions on the British eolonies, 6S lo SI.


PLANTATlON. See COLON~.




74.4 INDEX.
POLICY -Courl of, see B,.itish Guialla-Council of, ,;ee Cape oJ GlIad'


Hope.


POSSESSION OF THE REALM A"D" BRITISH POSSESSlONS."
See COLONY.


PRÉROGATIVE. See '~
PRINCE EDWARr.'i->' ' • é: 462-history and constitution, id.-


laws, 464-cOlli.J;j}!.-wills, id.-debts~ id.-insolvellt
-conveyances ofreal es~, id.


'"';,y


PRIVY COUNCIL-is to decide appeals from the
abroad, 79-probable origin of its jurisdiction, lO9-rules fOf
appeals lo the, lIl-judicial commitlee of, how lo be forroed,


PROBATE-grant of, in England-its elfec! in the colonies, 105.
PROPRIETARY GOVERNMENTS, 3, 17, and n., 19,20, n.


PROVINCIAL ESTABLISHMENTS, 17 and n., 19.


Q.
QUAKERS,81.


R.
REGISTRATION OF WILLS, DEEDS, &c.


variou! Colonies.) . "
REPRESENTATlVE ASSEMBLIES-in who~the


is vested, 9, lO-acts made by, in Ihe colo~ies, how COllli"lIle.d,
S.


SAINT CHRISTOPHER AND ANGUILLA-dependenton thegovem-~ ,
ment of Antigua, 123-description of, 159-history and constitution.
id.-collection of laws, 16:}--generallaw of the colony, ]64-Courts
of justice, 165-Courts of King's Bench and Common Pleas, ]66-
of Ordinary, id.-of Vice.Admiralty, id.-Court of Error, 167-of
Escheats, id.-prosecutions, iLl.-Court of Quarter Sessions, 168-
justices ofthe peace, id.-coroner, id.


SAINT LUCIA~oined, as lo the administration of justice, with DrlIU".,.'··'
Guiana and·rrinidad, 18, n.-was a proprietary !!mrerrlmEmt.
what law in force in, 23-0rders in CouDcil for Ihe adllllÍllist:ration
justice in, (see Briti.sh Guiana,) 267, 21i!-order in
the qualification of assessors in tbe Royal Court of, 288,
SCriptiOD of, 299-history and constitution, id.-Iaws in,
officers, 301-parti<;ular laws, id.-~ollection oC laws, 303.


SAINT VINCENT-not subject to the 4! per cent. duties, 51, n.-
a dependency oC Barbados, 123-descl'iption of, 214-history and'
constitution, id.-barristers and attornies, 218-collection oC laws,
219-general law oC tbe colony, id.-Courts, id.-Court oC Cban-
cery, 220-Courts of King's Bench and Common Pleas, id.-
Court of Complaint3, 222-Court of OrdiDary, id.-Court of Admi-
raIty, id.-Court of Appeal and Error, 223-Criminal Court, Grand
Sessiolls, id.-judges, 224-provost marshal and coroner, id.


SA RK-description of, and government, 706.