Reference :-
COPYRIGHT PHOTOGRAPH-NOT TO
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PUBLIC RECORD OFFICE
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PUBLIC RECORD OFFICE, LONDON
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No. 204.
(FALKLAND ISLANDS.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD DUKE,
Temple, August 10, 1863. We are honoured with your Grace's commands, signified in Mr. Elliot's letter of the 6th instant, stating that he was directed by your Grace to request that we would take into consideration the accompanying papers, and favour your Grace with our opinion as to the instructions which should be given to the Governor of the Falkland Islands.
Mr. Elliot was pleased to state that we should observe that a magistrate of that Colony, acting as chief magistrate or principal judge in the absence of the salaried officer bearing that title, had refused, on the application of the manager of the Falkland 1slands Company (Mr. Lane), to issue a writ against a constable who had arrested a servant of the company, and was alleged by so doing to have inflicted damage upon their property, and that it is of this refusal that Mr. Lane complains.
That Mr. Goodlake, who is referred to in these papers as chief magistrate. has resigned his office, to which Mr. Griffiths, a common law barrister, has now been appointed, and that Mr. Griffiths will shortly leave England for the Falkland
Islands.
Mr. Elliot was further pleased to state that no appeal lies from any judicial tribunal in the Colony to the Secretary of State, though the Crown possesses the power of suspending or dismissing the chief inagistrate, or of cancelling the commission of any other magistrate, in case he should be guilty of any offence which calls for such a step, and under the circumstances of the Colony, may perhaps not improperly be called upon to express an opinion upon any irregular judicial act.
Mr. Elliot was pleased to annex a copy of the Laws of the Falkland Islands, and to refer us particularly to the Summary Jurisdiction Ordinance, No. 11, of 1853.
In obedience to your Grace's commands, we have taken these papers into our consi- deration, and' have the honour to
Report
That we think the Governor of the Falkland Islands should be instructed to the following effect:—
That the magistrate in refusing to issue the writs applied for against the Constable, Peck, acted under an entire misconception of his duty. Under the 47th section of the "Administration of Justice Ordinance" of 1853, the laws of England generally (as they were in force on the 1st January 1850), are to be applied in the administration of justice in the Falkland Islands. Under the first section of the same Ordinance the magistrates' court has civil jurisdiction in all cases in which the Superior Courts of Common Law at Westminster have jurisdiction in England. Under the 7th section all the enactments and provisions of the English Common Law Procedure Act of 1852 are extended and applied to the magistrates' court, and actions and proceedings therein ~.. (so far as consistent with the Ordinance) except (inter alia) "the provisions with respect to the sealing of writs, and such as relate to the teste thereof in the name of a judge," and, under the 19th section, all writs and process are to be "tested in the name of the chairman or deputy chairman of the court from which the same shall issue, and shall in no case require to be sealed with any seal."
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The effect of these enactments is, that any one alleging himself to have a cause of action in the Falkland Islands against any person (and an illegal arrest, or false impri- sonment, by a constable or other officer of the law, or special damage thereby occasioned to the employer of the person so arrested, is undoubtedly a good cause of action) has the same right in that Colony to bring his action agunt the person whom he thinks fit to make defendant which he would have, under the like circumstances, in England. The duty of the chairman or deputy chairman of the magistrate's court, in issuing and testing the writ is merely ministerial, and it must be performed in every case without any inquiry whatever into the circumstances or merits of the case, or into the sufficiency of the grounds on which the cause of action is alleged to have arisen,
0 16278.-333.
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