PUBLIC RECORD OFFICE
Reference :-
C.O. 885
11 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
answer (addressed to Sir H. Storks), p. 258, and to state that that answer had been approved by the Law Officers of the Crown.
That there was at the time of these deportations no law in force in Jamaica autho- rising the deportation of aliens. That by 1 Vict. c. 18. s. 23 (which lasted only from December 1837 to December 1838) the Governor was authorised to apprehend and detain aliens “to the end that such proceeding may be had with regard to every such person as the safety of the island may appear to require, and to send away from "the island every such person so to be apprehended as aforesaid as he shall deem to "be of a dangerous or suspicious character with regard to the public safety and
tranquillity.'
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That by 29 Vict. c. 12, (passed in December 1865, and to last until December 1868) the Governor is empowered to order any alien to depart when he has reason to believe. from information in writing duly deposed to, that such alien "is intriguing and enter- taining designs adverse to the domestic peace of the Colony and its security, or to "the preservation of peace between this Colony and any other country, and that for securing the external peace and domestic tranquillity of the Colony it is expedient "to remove such person."
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That this Act was submitted to the Law Officers, and they reported that they were of opinion that under the then exceptional circumstances of the Colony of Jamaica the Act might properly receive Her Majesty's allowance.*
That, as bearing upon the case, he was desired to call our attention to the terms of the Indemnity Act, which was passed on the 10th November 1865, and is set out at p. 176, and also to the opiniont of the Law Officers upon the effect of the Act as embodied in a Despatch of Mr. Cardwell's, a copy of which was annexed for reference.
Sir Frederic Rogers was also pleased to add that General Salomon, as has been stated, is now Minister of the Haytian Government to this Court. That he has again brought forward his claim for justice and compensation, and protests against being referred to the Colonial Government, and Sir Frederic Rogers was desired to state that though he at present says that he makes this application in his private capacity, and not as Minister of the Haytian Government, it will be necessary in framing an answer to consider the probability of the case being taken up by the Haytian Government.
That under these circumstances the first question that arises is as to the form of answer to be returned to General Salomon, and Sir Frederic Rogers was further desired to state that in determining this question, which is undoubtedly rendered more difficult from the fact that the General's claim does not stand alone, and that it may at any moment be converted into a claim by the Haytian Government, the following points appear worthy of consideration :---
1. What legal remedy the General has, either here or in Jamaica, for damages in respect of the arrest, imprisonment, and subsequent deportation?
2. As regards that part of his claim which relates to the arrest and imprisonment, how far a bona fide apprehension on the part of the Governor that the General was plotting against the peace of the Colony of Jamaica, or was dangerous to the preserva- tion of peace, or a bona fide belief that he was plotting against Hayti, a friendly power, would afford any legal defence in proceedings at law?
3. How far such apprehension and belief would afford any equitable defence to a claim by him as an individual, or by the Haytian Government, in respect of such arrest and imprisonment?
4. As regards that part of the claim which relates to the deportation, whether the reasons assigned by Mr. Eyre for taking that step afford any legal or equitable defence to the claim, whether set up by General Salomon as an individual or by the Haytian Government?
5. How far the apprehension and belief that General Salomon was plotting against the
peace
of Jamaica or against Hayti were justified by the facts stated?
6. To what extent an admission of the claim of General Salomon would be an admission of like claims on the part of the other Haytians; and whether the conduct of the Haytians who were on the schooner "Oracle" does not make their case different from that of General Salomon and the Haytians who were arrested at Kingston?
7. To what extent an admission of the claim of General Salomon would be an admission of the claims of British subjects in Jamaica who were arrested upon suspicion, bona fide entertained, of their being connected with the insurrection? That it will be remembered that actions against Mr. Eyre and General Nelson have been commenced by British subjects for illegal arrest.
See No. 410.
See No. 377.
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8. Whether if it should be thought necessary or desirable to admit in general terme that General Salomon has some claim, any part of that claim can, under the circum- stances above stated, be separated from the rest, and fairly resisted, and if yes, what part?
9. Whether General Salomon was, under the circumstances, rightly referred in the first place to the Colonial Government, or whether the claim is such that if it can be made good it should be satisfied by the Imperial Government?
Sir Frederic Rogers was pleased to request that we would favour your Grace with our advice as to the answer to be returned to General Salomon, and the course which- should be adopted respecting this claim, and Sir Frederic Rogers added that your Grace would also desire to be informed respecting the effect which that answer or course of conduct would have with regard to the cases of the other Haytians, and upon the position of the Colonial and Imperial Governments in respect thereto.
In obedience to your Grace's commands, we have taken this matter into our con- sideration, and have the honour to
Report
That it may be convenient. before expressing an opinion as to the answer to be returned to General Salomon, to consider the questions submitted for our consideration as bearing upon the demand of the General and that of the other Haytians who were deported from Jamaica during the disturbance on the island.
We are of opinion that the General has a right of action here against Governor Eyre in respect of the arrest, imprisonment, detainer, or confinement, with a view to sub- sequent deportation, unless as regards the latter it could be shown that it was an of State."
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act
2. We think, as regards that part of his claim which relates to the arrest and imprisonment, that neither a bona fide belief on the part of the Governor that the General was plotting against the peace of the Colony of Jamaica, or that he was dangerous to the preservation of peace, nor that he was plotting against Hayti, would alone afford any legal defence in proceedings at law.
To constitute defence the Governor would have to show, not only that he believed he had good grounds for acting, but that there were reasonable grounds for that belief. Mostyn v. Fabrigas Cowper, 161 (1 Smith's Leading Cases 621, S.C.)
3. We think that the mere apprehension and belief (not corroborated by facts) would not afford an equitable defence to a claim by the General as an individual, nor to a claim by the Haytian Government, in respect of such arrest and imprisonment ordered on the ground that he was concerned in the conspiracy against Jamaica.
4. We think that the reasons assigned by Mr. Eyre for General Salomon's deporta- tion would, if they rested on reasonable foundation, afford an equitable answer to any claim which might be set up by General Salomon, or by the Haytian Government on his behalf, for reparation by the Imperial Government in respect of such deporta- tion. So far as the Haytian Government is concerned, it appears to us that measures taken bona fide to prevent one of their subjects from plotting against their Government could not be made a ground for diplomatic remonstrance.
5. Upon the facts, so far as we gather them from all the papers before us, there were very slender grounds for the apprehension and belief that General Salomon was plotting against the peace of Jamaica. The chief grounds of suspicion seem to have been that William Kelly Smith (according to information obtained by Mr. Naim) was a frequent visitor at the lodgings of General Salomon, and a state- ment made by Goldson that he was to be introduced by Kelly Smith to General Salomon, and that they were all to go to Hayti.
6. An admission of the claim of General Salomon would certainly operate prima facie as an admission of like claims on the part of other Haytians, but we think that the conduct of the Haytians who were on board the "Oracle" makes their care very different from that of General Salomon and the Haytians who were arrested at Kingeton.
An admission of the claim of General Salomon in respect of his arrest and imprison- ment as a conspirator against the peace of Jamaica might, we think, operate as an admission of the claims of British subjects in Jamaica who were arrested upon suspicion, bona fide but groundlessly entertained, of their being connected with the insurrection. It might, we think, be urged that if the Government took upon itself liability for the General's claim in this respect, it thereby recognised similar liability