the constitution and government here established by law, and in furtherance of such their purpose, did with force and in confederated multitude commit on the 11th day of October, in this present year of our Lord 1865, and on divers other days then following, in the parish of St. Thomas in the East, many burglaries, robberies, arsons, murders, and other felonies, with treasonous purpose in renunciation of their natural allegiance, and to the intent of the general massacre of all loyal and well disposed subjects of the Queen here dwelling. And whereas upon being informed of such the aforesaid atrocities, his Excellency Edward John Eyre, Esq., the governor of this island, with the advice of a council of war and in order to prevent the extension of the rebellious outbreak, did proclaim that martial law should obtain and prevail throughout the county of Surrey, with the exception only of the city and parish of Kingston. And whereas under God's providence the military and naval forces of the Queen, with the loyal co-operation of others her Majesty's faithful subjects in this island, have arrested the spread of this rebellion and saved the lives of law-abiding citizens from imminent general sacrifice. And whereas military, naval, or civil authorities necessarily employed in the prompt suppression of the atrocities aforesaid, may, according to the law of ordinary peace, be responsible in person or purse for acts done in good faith for the purpose of restoring public peace and quelling the rebellion. And whereas it is expedient that all persons, whosoever in good faith and of loyal resolve have acted for the crushing of this rebellious outbreak, should be indemnified and kept harmless for such their acts of loyalty. Be it therefore, and it hereby is enacted by the governor, legislative council, and assembly of this island, first, that all personal actions, and suits, indictments, informations, attachments, prosecutions, and proceedings, present or future, whatsoever against such authorities or officers, civil, military, or naval, or other persons acting as last aforesaid, for or by reason of any matter or thing commanded, ordered, directed, or done, since the promulgation and publication of the proclamation of martial law aforesaid, whether done in any district in which martial law was proclaimed or in any district in which martial law was not proclaimed, in furtherance of martial law, that is to say, on, from, and after the 13th day of October last past, and during the continuance of such martial law, in order to suppress the insurrection and rebellion, and for the preservation of the public peace throughout the island shall be discharged and made void, and that every person by whom such act, matter, or thing shall have been advised, commanded, ordered, directed, or done for the purposes aforesaid, on, from, and since the 13th day of October, and during the existence of such martial law, shall be freed, acquitted, discharged, and indemnified, as well against the Queen's most gracious Majesty, her heirs and successors, as against all and every person and persons whomsoever." "And it is hereby also enacted, that his Excellency Edward John Eyre, Esq., captain-general and governor-in-chief, and all officers and other persons who have acted under his authority, or have acted bonâ fide for the purposes and during the time aforesaid, whether such acts were done in any district in which martial law was proclaimed, or in any district in which such martial law was not proclaimed, are hereby indemnified in respect of all acts, matters, and things done in order to put an end to the rebellion, and such acts so done are hereby made and declared to be lawful and are confirmed." "In order to prevent any doubt which might arise whether any act alleged to have been done under the authority of the governor, or to have been done bonâ 1869 PHILLIPS v. EYRE. 1869 PHILLIPS V. EYRE. fide in order to suppress and put an end to the rebellion was so done, it shall be lawful for the governor for the time being to declare such acts to have been done under such authority, or bonâ fide for the purposes aforesaid, and such declaration by any writing under the hand of the governor for the time being, shall in all cases be conclusive evidence that such acts were so done respectively." That by the laws and constitution of the island, the governor, legislative council, and assembly of the island had power and authority to make and pass the Act, subject to the assent of the Queen thereto; and that afterwards the Act duly received the assent of her Majesty, and all conditions in that behalf to be performed having been performed, and all things necessary to be done having been done, and all times necessary to elapse having elapsed, the act became, and was, and is part of the law of the island of Jamaica. That the person in the Act called his Excellency Edward John Eyre, Esq., was and is the defendant, and that the alleged grievances in the declaration mentioned were committed in the island of Jamaica after the 13th of October, 1865, and during the continuance of the rebellion, and before the passing of the Act, and were measures used in the suppression of the rebellion, and were reasonably and in good faith considered by the defendant to be proper for the purpose of putting an end to the rebellion, and were matters and things bonâ fide done in order to put an end to the rebellion, and are included in the indemnity given by the Act. Replications: 1. Issue joined on the pleas. 2. Demurrer to the second plea and joinder. 3. To the second plea, that the plaintiff sues not only for the trespasses admitted, but also for that the defendant committed such trespasses as are complained of and not included in the Act on other occasions, for longer periods of time, and in other places than are attempted to be justified or excused, and in excess of the alleged right or excuse. 4. As to the second plea, so far as it relates to divers of the trespasses committed on the high seas, and mentioned in the fifth count, the plaintiff says that the trespasses were committed beyond the territorial limits within which the Jamaica legislature had at the times or at the time when the act was made and passed jurisdiction or authority. 5. To the defendant's second plea, that the defendant, at the time of the making and passing of the Act in the plea set forth, was the governor of the island of Jamaica and the territories thereon depending, and was then present in the island, and was then acting in such capacity of governor of the island, and is the governor referred to in the Act in the words " Be it therefore, and it is hereby enacted, by the governor, legislative council, and assembly of this island ;" and was by the law and constitution of Jamaica himself a necessary party to the making and passing of the Act, and the Act, so far as it became the law of Jamaica was by virtue of his consent as such governor, acting with the council and assembly, and could not have become the law of Jamaica, without the consent of the defendant as such governor. Demurrer to the fifth replication and joinder. Nov. 17, 1868. Quain, Q.C. (J. H. Payne with him), for the plaintiff. The second plea is not a plea of justification, justifying the tort under the law of Jamaica; but it is a plea of discharge setting up a special act of ex post facto legislation, conferring indemnity on certain persons, and amongst them on the defendant. The lex loci commissi delicti does not apply to this case, because it is an action brought in England against the governor of a colony who could not be sued there for acts done in the colony. Lord Mansfield, in his judgment in Mostyn v. Fabrigas (1), says: "In every plea to the jurisdiction you must state another jurisdiction . . . .; and in every case to repel the jurisdiction of the king's court you must shew a more proper and more sufficient jurisdiction; for if there is no other mode of trial, that alone will give the king's courts a jurisdiction." [LUSH, J. The action does not lie in the colony, because it is a personal immunity of the governor while governor that he should not be sued. COCKBURN, C.J. No one doubts the law as laid down by Lord Mansfield in Mostyn v. Fabrigas (1) is correct; but the defendant contends that the Act of Indemnity bars the right of the plaintiff to sue in England.] Assuming, then, there was a wrong done for which the defendant would be amenable here, the plaintiff had a cause of action in this country the moment that the tort was committed, and that cause of (1) Cowp. at p. 172; 1 Sm. L. C. at p. 637, 6th ed. 1869 PHILLIPS V. EYRE. 1869 PHILLIPS v. EYRE. action cannot be divested by the act of the legislature of Jamaica. There is no difference between a prosecution under the act generally known as The Governor's Act (11 & 12 Wm. 3, c. 12) (1), and a civil action. If there was an indictment in this court under that act, the defendant could not set up in answer a law made ex post facto. The statute 11 & 12 Wm. 3, c. 12, made governors of colonies punishable for crimes and offences committed out of the realm. At the time of the passing of that act it was thought that in general crimes committed in the colonies could not be punished in England; but it is clear, that before the reign of Henry VIII. such offences could be heard and determined before the constable and marshal: 3 Ins. 48; but that court having in that reign practically ceased to exist (2), there was no criminal tribunal until 11 & 12 Wm. 3, c. 12, to try such offences. [COCKBURN, C.J. It is very doubtful whether the court of the constable and marshal had jurisdiction, except for acts done in war; but it is unnecessary to discuss that question.] A court of oyer and terminer had no jurisdiction, because the offence was not committed within any county from which a jury could come. The object of 11 & 12 Wm. 3, c. 12, was not to (1) 11 & 12 Wm. 3, c. 12, enacts :"Whereas a due punishment is not provided for several crimes and offences committed out of this his Majesty's realm of England, whereof divers governors, lieutenant governors, deputy governors, or commanders-in-chief of plantations and colonies within his Majesty's dominions beyond the seas, have taken advantage, and have not been deterred from oppressing his Majesty's subjects within their respective governments and commands, nor from committing several other great crimes and offences, not deeming themselves punishable for the same here, nor accountable for such their crimes and offences to any person within their respective governments and commands; for remedy thereof be it enacted, . . .. that if any governor, lieutenant-governor, deputy-governor, or commander-in-chief of any plantation or colony within his Majesty's dominions beyond the seas shall, after the 1st day of August, 1700, be guilty of oppressing any of his Majesty's subjects beyond the seas within their respective governments or commands, or shall be guilty of any other crimes or offences, contrary to the laws of this realm or in force within their respective governments or commands, such oppressions, crimes, and offences shall be inquired of, heard, and determined in his Majesty's Court of King's Bench here in England, or before such commissioners, and in such county of this realm as shall be assigned by his Majesty's commission, and by good and lawful men of the same county; and that such punishments shall be inflicted on such offenders as are usually inflicted for offences of like nature committed here in England." (2) See 4 Bl. Com. 268. make a new crime, but to make acts always deemed criminal triable before a court of common law; and the intention was merely to make these offences, for which a civil transitory action could previously be maintained, punishable by indictment in England. An action and an indictment, therefore, stand upon the same footing. In the criminal proceedings taken against the defendant, Blackburn, J., in his charge to the grand jury (1), expressed an opinion, that after a bill had been found in England, it would not have been competent to the Jamaica legislature to pass any Act of Indemnity equivalent to a pardon. The reasons given by the learned judge why the Jamaica legislature could not stay proceedings on an indictment after it was found are cogent to shew that they could not prevent its being found; and as an indictment and an action stand upon the same footing, the Jamaica legislature cannot divest the cause of action which has once vested. [COCKBURN, C.J. If a British subject sustains a wrong in a colony, alternative remedies are open to him; he can sue either in the colony or in England. The short question is, can the right to sue in England be taken away by the colonial legislature?] Suppose that the legislature of Jamaica had enacted in express terms that the defendant should not be sued in England, that could not be pleaded to an action in this country. THE COURT then called upon Mellish, Q.C. (Poland with him), for the defendant. By the law of England the legislature of a colony is supreme within the boundary of the colony. The courts in this country are bound to recognize the laws which the colonial legislature make as part of the English law. The Crown may refuse its consent to a colonial Act; the imperial parliament may interfere; and the laws which the colonial legislature make must not be "repugnant" to the law of England, as that word is explained in 28 & 29 Vict. c. 63 (2); but, subject (1) The Queen v. Eyre, by Finlason, . p. 101. or repugnant to any order or regulation 1869 PHILLIPS บ. EYRE. |