PUBLIC RECORD OFFICE
19
C.O.
Reference :-
885
10 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
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A constable is as much liable to such an action as any other person, if, in making an arrest, he has acted without legal justification, and whether he has done so or not is, in every such case, a mere question of fact to be tried in the action, and not to be made the subject of any preliminary inquiry or exercise of judgment by the magistrate before testing the writ. If, in the present case, the constable should be able to show at the trial, either that the person apprehended by him was "found committing an " of offence" contrary to the 37th section of the "Summary Jurisdiction Ordinance 1853, or that he was "reasonably suspected of having committed " any such offence, he will be able to make good his justification, and the verdict and judgment ought to be in his favour. But this is a question which the plaintiff in the action has a right to raise and to have tried by a jury (under section 21 to 23 of the Administration of Justice Ordinance) in the ordinary way, and for the magistrate to intercept such a right of action by refusing, in limine, to issue the writ, on the ground of some opinion which he may himself have formed of the merits of the particular case, or of some public inconvenience which he may suppose likely to arise, if constables should be held liable to actions of this kind, would be (as is justly observed by Mr. Lane) to substitute arbitrary power for law.
Some allowance may no doubt be made, in the peculiar circumstances of the Colony, for this error of the magistrate, who seems to have had no legal education, and who probably failed to draw the necessary distinction between the issuing and testing of a writ in a civil action and the granting of a summons upon sworn information in the case of a criminal charge, in which latter case the magistrate would be entitled and bound to exercise his judgment as to the sufficiency of the ground on which the charge was made, as appearing by the informations. It will, probably, be sufficient in this case for the Governor to inform the magistrate and Mr. Lane of the view of the matter which has been taken by Her Majesty's Government, though, if the same course were hereafter persisted in by any magistrate, we should consider it quite a sufficient ground for his removal from office; the refusal of a writ which ought to be granted ez debito justitiæ, in the discharge of a merely ministerial duty, being rather an act of misconduct in office than matter for an appeal to Her Majesty in Council. It is scarcely necessary to add that there may be cases in which an officer of justice who has become liable to a civil action in consequence of acts bond fide done by him with a view to the mere execution of his duty, or of the orders of his superiors, ought to be defended and indemnified at the public expense. But this cannot take away the right of individuals to pursue their legal remedies against such an officer for any injury which they may have suffered by reason of acts done by him under such circumstances.
I have, &c.
His Grace the Duke of Newcastle, K.G.,
&c.
&c.
&c.
For the Attorney General and myself. (Signed) ROUNDELL PALMER.
7762.
No. 205.
(JAMAICA.}
LAW OFFICERS to COLONIAL OFFICE.
MY LORD DUKE,
Temple, August 10, 1863. We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 8th ultimo, stating that he was directed by your Grace to request that we would favour your Grace with our opinion under the circumstances stated in an extract from a Despatch from the Governor of Jamaica, as follows:-
"It is my duty to remark that the case stated is a real grievance, and that the question raised by it is one of great magnitude and importance. There are in Jamaica 20 clerks of the peace, 14 of whom are also clerks to the magistrates; all are lawyers by profession, most of them enjoying very considerable incomes, up to 1,250l. per annum, irrespective of their position as solicitors. Many are connected with families of position and influence in the island; several are also members of the House of Assembly. These officers are appointed by the custodes of the parishes, but they are not removable by them. The Executive has no power of interference whatever, and the Supreme Court, which is the only tribunal to which they are nominally amenable, cannot initiate proceedings against them mero motu, but must be moved to do so by the affidavit of others.
"The result is, that there is a numerous class of influential public officers paid from the revenue of the Colony, wholly irresponsible and uncontrolled. Many of them do their work entirely by deputy, many neglect it wholly; and some, as in Mr. Brown's case, remain absent from Jamaica altogether, but still go on receiving pay for duties they do not perform.
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The judges find these officers a source of frequent annoyance, for although officers of their courts they almost set them at defiance. The Executive is placed in the position of having paid servants of the Crown, often in opposition to it in the Assembly, and the public at large suffer through the power of men, who, from their legal knowledge, and the consequent dependency of the magistracy upon them for advice or for a statement of the law, exercise an influence in the community far too great, because wholly irresponsible."
Sir Frederic Rogers was also pleased to state that it would be observed that the clerks of the peace are not appointed by the Crown, but by the custodes rotulorum; and that he was directed by your Grace to explain that a Local Statute, 23 Vict. c. 18. в. 6., prescribes their duties, and authorises the parochial authorities to give them leave of absence, while another Local Statute, 19 Vict. c. 10. s. 32., provides for the mode of their dismissal from office. It will be observed that the Supreme Court possesses in this respect the power formally possessed by quarter sessions, but that your Grace is not informed what these powers are.
The Imperial Acts, 22 Geo. 3. c. 75. and 54 Geo. 3. c. 61., provide for the amotion of public officers by the Governor and Council, and for the forfeiture of their offices on quitting the Colony without leave of absence.
When these Acts passed the Governor was assisted by a council, the nature of which was defined by his commission, and which was at once a branch of the Legislature and an advising or privy council.
By a Local Act (17 Vict. c. 29.) the legislative function of the old Council (section 1) was transferred to a body called the Legislative Council, while provision was also made
for a "privy or advising council" which was to possess all the powers belonging to the old Council "when sitting or acting as Privy Council"
Sir Frederic Rogers was also further pleased to state that your Grace wished to be informed-
1. Whether the Governor and Council can remove a clerk of the peace for absence
or neglect of duty, or other misbehaviour, under authority of the second clause of 22 Geo. 3. c. 75.
2. And that your Grace presumes that in giving effect to this Act the Governor is to seek the concurrence not of the Legislative Council, but of the Privy Council.
Sir Frederic Rogers was also further pleased to state that he was directed by your Grace to enclose copies of two Despatches from the Governor of Jamaica, enclosing No. 44, reports from the Local Attorney General on this subject; and that with reference to Feb. 163. the observation of the Attorney General that the Act of 54 Geo. 3. extends the first 14 May 18.
。 16278.-199. 95.-9/86.
No. 131,
9 Vict. c. 49.
17 Vict. c. 29.
18 Vict. c. 35.
19 Vict. c. 10.
23 Vict. o. 18.