9174.
No. 658.
(BAHAMAS)
LAW OFFICERS to COLONIAL OFFICE.
Temple, August 25, 1870. MY LORD,
We are honoured with your Lordship's commands, signified in Mr. Herbert's letter of the 24th instant, stating that he was directed by your Lordship to transmit for our consideration a copy of a Despatch from the Governor of the Bahamas enclosing a letter addressed to him (the Governor) by the local Attorney General on the subject of the liability of a Governor to be sued for an act done by him in his political capacity as an act of State.
In obedience to your Lordship's commands we have taken this Despatch into our consideration, and have the honour to
Report
That we are of opinion that the true state of the law is to be found laid down in the case of Hill v. Bigge 3 Moore P.C., p. 465, a case of the highest authority, in which Lord Brougham pronounced the judgment not only of himself, but of Lord Campbell, Mr. Justice Erskine, and Dr. Lushington. If the dictum of Lord Mansfield in Mostyn v. Fabrigas has not been misreported, it is not possible to maintain in its full breadth, although, with some qualification, the principle which he lays down is un- doubtedly correct.
It is true that a Governor is not in law liable for an act done by him in the exercise of his reasonable discretion as Governor, and as an act of State. But this is matter of defence to be pleaded like any other defence, and examinable by the court like every other defence if the Governor is sued. It cannot be maintained that a Governor cannot be sued, for that would place the life, liberty, and property of every one within his territory at his absolute disposal during the continuance of his Government. But if the defence suggested is pleaded and is made out to the satisfaction of the court, we think the court would be bound, either itself or through the jury, to give effect to it.
We have, &c.
R. P. COLLIER. J. D. COLERIDGE, T. TWISS,
The Right Hon. the Earl of Kimberley.
(Signed)
• 19978,-879.
25.-5/86.
PUBLIC RECORD OFFICE
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