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or ceded to us by treaties. But there is a difference between these two species of colonies, with respect to the laws by which they are bound; for it hath been held, that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birth-right of every subject, are immediately there in force ; but this must be understood with very many, and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situation, and the condition of an infant colony ; such, for instance, as the general rules of inheritance, and of protection from personal injuries. The artificial refinements and distinctions incident to the property of a great and commercial people—the laws of police and revenue (such especially as are enforced by penalties), the mode of maintenance for the established clergy; the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and therefore are not in force. What shall be admitted and what rejected, at whạt times and under what restrictions, must, in case of dispute, be decided, in the first instance, by their own provincial judicature, subject to the revision and control of the King in Council : the whole of their constitution being also liable to be new modelled and reformed, by the
general superintending power of the legislature in the mother country. But in conquered or ceded countries, that have already laws of their own, the King may indeed alter and change those laws; but, till he does actually change them, the ancient laws of the country remain (6),
unless (6) Mr. Christian adds, “ See an elaborate and learned argument by Lord Mansfield, to prove the king's legislative authority by his prerogative alone, over a ceded conquered country.”—(Cowp. p. 204.)
There is great importance attached to the joint situation of governors and com.-inchief (possessing both a civil as well as a military capacity), and to the well understanding the laws of the island to which they are appointed governors ; this is instanced in the case of the late Lieut.gen. P., some time governor and com. in chief over and in the island of Trinidad, in the West-Indies. This was a trial before the Court of King's Bench, Feb. 24, 46 Geo. 111., A. D. 1806, on an indictment by the King v. T. P., Esq., on the prosecution of Louisa Calderon, a free mulatto, in causing tor. ture to be inflicted on ber, for refusing to give evidence. This was sanctioned by the laws in force, before the cession of the island by Spain. The question bere was, whether those laws were still in force, and authorized such an infliction. The gen. as gov. merely put his name to the authority for its infliction, and the instrument being laid before him by the legitimate legal authorities of the island, he did not inquire into the nature and origin of the law, but acted under legal advice, and consequently presumed he was acting properly, and signed the authority as a matter of course. The question also went as to his judicial character as gov., and Lord Ellenborough, in summing up to the jury, said, " if I were to give my opinion, I should perhaps say that I think he had not such judicial powers. All the authority conveyed to persons in his situation is derived from H.M., who, upon the cession of a foreign settlement, either adopts and continues the old laws, or promulgates new ones ; but, in so far as he does not promulgate new laws, the old remain as before. I refer you to the source of all legitimate authority possessed by the gov.; I mean the instructions given by H. M. If by these instructions no power is given to the gov. to represent the audience of Caruccas as the court of appeal, as I am clearly of opi
unless such as are against the law of God, as in the case of an infidel country. Our American plantations are principally of this latter sort,
being nion, that he does not take such power by devolution, that power remains iu H.M., to be executed by himself, or those whom he shall expressly appoint for that purpose. It therefore comes now to the question, what is the true construction of H. M.'s instructions to Gen. P. ? Did H. M., by those instructions, invest him as gov., with the powers heretofore possessed by the royal audience of Caraccas ?"
“H. M.'s words are, . It is our will and pleasure, that, for the present, the temporary administratton of the island should, as nearly as circumstances will permit, be erercised by you according to the terms of the capitulation hereunto annexed, in conformity to the ancient laws and institutions that subsisted within the same, previous to the surrender of the sail island to us, subject to such directions as you shall now or hereafter receive from us, under our signet or sign manual,' &c. Then he says, “It is nevertheless our special command, that all the powers of the executive govt. within the said island, as well civil as military, shall be vested solely in you our gov., or in the person having the govt. of the said island for the time being,' (i. e. the civil and military, but not the judicial powers), and that such powers as were heretofore erercised by any person or persons separately, or in conjunction with the gov. of the said island, shall belong solely to you our gov., or to the person having the govt. of the said island for the time being ;' now if the instructions had said, in general terms, that all the powers that had been before exercised should vest in the gov., that would have comprehended the powers exercised by the audience of the Caraccas : but I think this must be understood not to relate to the judicial power, which is mentioned afterwards ; 'and it is our will and pleasure, that all such public acts and judicial proceedings, which before the surrender of the said island to us, were in the name of his Catholic Majesty, shall henceforth be done, issued, and performed in our name (7).
“Now comes art. 7, upon which a question may arise : "it is our will and pleasure, that for the present, and until our further pleasure shall be siguified, the same courts of judicature which subsisted in the said island previous to the surrender thereof to us, shall, for the present, be continued in the exercise of all the judicial powers belonging to them, in criminal and civil cases.' Thus all the courts of the island were continued in the exercise of their respective civil and criminal jurisdictions. In criminal cases, where there was an afflictive punishment, as it has been called, there had been under the former govt. a right of appeal to the royal audience of Caraccas, but, upon the cession, that court ceased to have any jurisdiction in Trinidad, and the exercise of its powers by any other tribunal, was not provided for by the terms of H. M.'s instructions, but those powers did not therefore devolve upon him to whom they were not given, but remained with H. M. to be delegated by him to such person, or persons, as he should choose.
“The instructions then say, 'that they shall proceed according to the laws by which the said island was then governed ; and that such judicial powers as previous to the surrender of the said island to us, were exercised by the Spanish govt., shall be erercised by you, our gov., in like manner as the same were exercised previous to the surrender of the said island.' The Spanish govr. never exercised this authority, but always referred himself to the audience of the Caraccas.
« The two important points in this case are, Ist, the effect of the cession of the island lo H.Mi's arms upon the pre-existing law for the infliction of torture (if you are of opinion that law did exist); the 2d is, the effect of this commission, and whether it did convey to Gen. P. those powers, which had been theretofore exércised by the royal audience of Caraccas.
“ These are questions of great moment; and if a special verdict is returned, it will be necessary that certain facts should be found for the purpose of raising these
questions. (7) Howell's State Trials, vol. XXX, p. 866.
being obtained in the last century, either by right of conquest and driving out the natives, or by treaties. And therefore the common law of
England, questions. It will be necessary for you first to say, whether the law of torture previled, up to the time of the cession. I have stated that, in my opinion, it did prevail ; if you are of the same opinion, then of course the gentlemen will state in the special verdict (not all that they have given it, but) as much as is material” (8).
The following was the jury's verdict : “ That, by the law of Spain, torture existed in the island of Trinidad at the time of the cession of that island to Great Britain ; and that no malice existed in the mind of the defendant against Louisa Calderon, independent of the illegality of the act" (9).
The instructions issued by Sir R. Abercrombie, dated 1st March, 1797, on the cession of the island, were, that “in criminal causes, the appeal shall be to the Govr., and no sentence shall be executed till approved by him” (10).
Lieut.gen. P. (then Lieut.col.) was appointed Govr. by the King in June, and took the office on 1st July, 1801, and it appeared that there were no further directions at the time of giving and issuing the said instructions from thenceforward, until the time of inflicting torture upon the said Louisa Calderon (11).
The argument on the special verdict, came on before the court of K. B., Feb. 10, 50 Geo. III. A. D. 1810, on wbich occasion Lord Ellenborough said, “ supposing you succeeded in showing he had no judicial power, bas he not, under the King's instructions, the erecutive power ? was he not authorized, by those instructions, to confirm this sentence ? does not the power of the audience of Caraccas“ (an English Govr. could not appeal to a Spanish tribunal)" become vested in him ? is there not in these instructions, a direction that he shall exercise all the powers of the executive govt., which had been exercised before ? and is not the confirmation of the sentence a branch of the executive power exercised in this country? Is it not what the audience of Caraccas did before ? and did the audience of Caraccas exercise it as a judicial body, or as a part of the executive govt. ? But still, were they not the executive govt, acting upon such a subject as the privy council here act, and where legal characters always attend? I have myself the honour to attend as a privy councillor, but I do not attend as a judge ; they act as a part of the executive govt.; the Lord Chancellor, and other persons, invested with legal characters, appear there as counsel of H. M., to advise him in the administration of the executive govt. and, in a criminal case, it is referred to the privy counsel to ratify, or mitigate, particular penal judgments"(12).
“ They applied to Gen. P., considering him, under this commission, as standing in the place of the audience of Caraccas, not to confirm the ju.igment, but upon an interlocutory proceeding. The torture was not to be inflicted without such sanction ; but the question is (and that depends upon the law of the particular place), whether it is an executive or judicial act."-(Vol. xxx, p. 925.) “ It seems to be important as to the authority, when the question becomes so nice as this, whether a man who was so near being right, be legally guilty ?”' (13)
The special verdict was argued by Mr. Stephen for the defendant on 16th and 17th May, 1810, when Lord E. again observed “ The conquerors individually lose no privilege. But if they choose to go abroad into a Spanish colony, where a different form of law prevails, they must abide by the consequences. You must either admit that the old laws continue till the new are introduced, or they must be positively in a lawless state” (14).
There (8) Howell's State Trials, vol. xxx, p. 867. (9) Howell's State Trials, vol. xxx, p. 869. (10) Howell's State Trials, vol. xxx, p. 873. (11) Howell's State Trials, vol. xxx, p. 875. (12) Howell's State Trials, vol. xxx, p. 924. (13) Howell's State Trials, vol. xxx, p. 928. (14) Howell's State Trials, vol. xxx, p. 946.
England, as such, has no allowance or authority there; they being no part of the mother country, but distinct (though dependent) dominions. They are subject, however, to the controul of the parliament ; though (like Ireland, Man, and the rest) not bound by any acts of parliament, unless particularly named " (16). “ With respect to their interior polity, our colonies are properly of three sorts : 1. Provincial establishments, the constitutions of which depend on the respective commissions issued by the crown to the governors, and the instructions which usually accompany those commissions; under the authority of which, provincial assemblies are constituted, with the power of making local ordinances, not repugnant to the laws of England. 2. Proprietary
governments, There is the following note added to this case : “ No further proceedings took place in this case, until Hilary Term, 52 Geo. III. A. D. 1812, when the court ordered the defendant's recognizance to be respited until they should further order.
“ It was thought by the Bar, that had the opinion of the court been delivered, judgment would have been given against Gen. P.; but that upon a consideration of the merits, it would have been followed by a punishment so slight, and so little commensurate with the magnitude of the questions embraced by the case, as to have reflected but little credit upon the prosecution ; and I have been informed, that it was by the advice of one of the learned counsel, who greatly distinguished himself in arguing the questions which arose in this case, that it was not again agitated.
“ In the month of July, 1809, while this prosecution was still pending, the defendant, Gen. P. (as it has been reported, at the unsolicited recommendation of the then Com. in chief) was appointed to the command of a brigade, at the attack upon the island of Walcheren."—Howell's St. T. vol xxx. p. 956.
It will be seen by the observations of Lord Ellenborough, that he was inclined to be of the opinion that Lieut.gen. P. was authorized in the measure he adopted, consonantly with his instructions, and which his Lordship evidently thought were not calculated to relieve the gen.'s mind, as to any doubt that might arise, as to the exercise of his power and authority in this particular case.
I have given this case (which was agitated for six years (15)) to show the importance of clearly defined instructions, for if a mily. man, not versed in the law, is left uninfurmed upon any point, and his legal adviser should happen to have given an opinion, under a misconception of the law, surely the officer acting under such advice, should not be held responsible for acts, which he believed to be within the legitimate exercise of his authority: and let it be recollected, that the peine forte et dure which was inflicted when the accused would not plead, was not abolished in England till by the 12th Geo. III. c. 20; and that, however we may condemn the prevailing law of another country, that law must remain in force, till it is abrogated ; for otherwise, as Lord E. observed, “ they must be positively in a lawless state."
Counsel for the prosecution, Mr. Garrow, Mr. Adam. The special verdict was argued by Mr. Nolan, for the crown.
Counsel for the defendanı, Mr. Dallas, Mr. Lawes, and Mr. Abercrombie. The special verdict was argued by Mr. Stephen, for the defendant.
(15) The indictment was found by the grand jury of the County of Middlesex, in Hilary Term, 1804. The trial came on before the Court of K. B., Feb. 24, 46 Geo. III., A. D. 1806. A motion for a new trial was made, and the second trial took place June 11, 48 Geo. III., A. D. 1808 (a mandamus having been issued from the Court of K. B. to obtain further evidence from the island of Trinidad). There was a special verdict on the second trial, which terminated as above stated, on, the 17th May, 1810.
(16) Blackstone, vol. I, p. 107.
governments, granted out by the crown to individuals, in the nature of feudatory principalities, with all the inferior regalities, and subordinate powers of legislation, which formerly belonged to the owners of counties palatine; yet still, with these express conditions, that the ends for which the grant was made be substantially pursued, and that nothing be attempted which may derogate from the sovereignty of the mother country. 3. Charter governments, in the nature of civil corporations, with the power of making bye-laws for their own interior regulation, not contrary to the laws of England ; and with such rights and authorities as are specially given them, in their several charters of incorporation. The form of government, in most of them, is borrowed from that of England. They have a governor, named by the King (or, in some proprietary colonies, by the proprietor) who is his representative, or deputy. They have courts of justice of their own, from whose decisions an appeal lies to the King in Council here in England. Their general assemblies, which are their House of Commons, together with their council of state, being their Upper House, with the concurrence of the King, or his representative, the governor, make laws, suited to their own emergencies. But it is particularly declared by statutes 7 and 8, Wm. III., c. 22, that all laws, bye-laws, usages, and customs, which shall be in practice in any of the plantations, repugnant to any law, made or to be made in this kingdom, relative to the said plantations, shall be utterly void and of none effect” (17).
It is to be remarked, however, the above observations particularly apply to what were then the North American colonies, but now form the United States. There are, I believe, at present, no proprietary colonies belonging to this country.
There were grants made to the first Lord Amherst, for which the crown gave his Lordship, it is said, an indemnification, in lieu of the proprietary right which he possessed by a grant of certain lands in Canada (Amherstburgh).
Section 19.-His Majesty's TROOPS IN The East-Indies.
Officers of H. M.'s Forces employed in the East-Indies may sit with
Officers in the Co.'s service at Courts-Martial. Art. l)(1). Whenever any of our forces shall be employed with the troops of the U. Co. of Merchants trading to the East-Indies, the officers of our forces so employed may, as often as it shall be
judged (17) Blackstone, vol. I, p. 108. (1) Sec. xxii, art. 1, Ann. Arts. of War, 1824.