CO885-(10-11) — Page 503

PUBLIC RECORD OFFICE

6T

C.O. 885

Reference :-

11 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

Chalmer's opinions, Vol. 1, pp. 232, 228. Barge Colonial LAW Prelimi- nary Treatise,

PP. 33, 34.

Laws of Ja-

maica, Vol. 1.

Introductory

Documents,

p. 69.

2

observed that there was nothing new in the substance of these clauses. Acts containing similar provisions (of which a long enumeration is contained in the preamble to this Act) had been in force in the island almost from the time when it was first colonised by British subjects (see section 7 of 33 Car. 2. c. 21., Laws of Jamaica, Vol. I., p. 29). The suggestion that this uniform course of legislation in the island for two centuries was ultra vires cannot be accepted without cogent proof.

The Petition of Right and Magna Charta have, in our opinion, no bearing at all Neither of those English statutes is made applicable by the upon this question. express words or necessary intendment of any Act of Parliament to Jamaica or to any other Colony. Even, therefore, if the substance of their provisions, or such of them as might be applicable to the circumstances of the Colony, had been introduced into Jamaica, otherwise than by Imperial legislation (and of Imperial legislation intro- ducing them we find, as we have said, no trace), there would have been nothing to prevent the Colonial Legislature from repealing or altering or passing laws repugnant to that part of their local law (see 28 & 29 Vict. c. 63. ss. 1, 2, 3). But it is im- possible for us to infer, in the face of the Colonial militia laws, from the 33 Car. 2. c. 21. downwards, that any provisions of either of these statutes, which might be inconsistent with the proclamation of martial law under the circumstances contemplated by the Colonial Act 9 Vict. c. 35. as. 96 and 97, ever were introduced into or ever formed part of the law of Jamaica.

It has been treated by some authorities, as a question open to doubt, whether Jamaica ought properly to be regarded as a conquered or ceded territory, or whether it ought not, for at least some purposes, to be reckoned among the Colonies originally settled from Great Britain; the ground suggested for the latter view being that it was substantially reoccupied by British colonists after the original Spanish settlers had for the most part left the island. If it were necessary to express any opinion upon this point, we should say that the facts of the conquest of the island by Cromwell, and the cession of it to the Crown of England by Spain, being unquestionable, it is not easy to see how it could cease to be regarded by the law as a conquered and ceded country, because there were only about 1.500 Spaniards remaining in the island when the English took possession, or because the property passed into the But be this as it may, it is on all hands admitted that these hands of English settlers.

parts of the general common and statute law of England, which at any time became, or were received as part of the law of the island, became so, subject, like all the rest of the local law, to future Colonial legislation (see Clark on Colonial Law, 1st Ed., p. 343).

65

In 1680 the then Attorney General gave his opinion to the Privy Council “that the people of Jamaica had no right to be governed by the laws of England, but by such The judges were ordered "laws as were made there and established by His Majesty.'

to be consulted upon the same and a further question, but what answers (if any) they gave does not appear. In 1683 the Royal Assent was refused to an Act of the Colonial Vol. 1. ss., Legislature (35 Car. 2. c. 13.) for “declaring the laws of England in Force." In 1724

Laws, &c.,

Chalmer's Opinions, Vol. 1, p. 220.

Sir Philip Yorke and Sir Clement Wearg (then Attorney and Solicitor General) gave a very elaborate opinion upon the then condition of the island, in which they said:-

Such Acts of Parliament as have been made in England to bind the plantations in general, or Jamaica in particular, and also such parts of the common or statute law of England as have by long usage and general acquiescence been received and acted under there, though without any particulur law of the country for that purpose, will (as we humbly con- ceive) continue of the same force after the 1st of October next as they were before."

In 1728 certain differences, between the Colonial Assemblies and the Crown, which had continued from the time of Charles II. till the accession of George II., were Jamaica Laws. finally accommodated; and the Colonial Act (1 Geo. 2. c. 1.) was then passed; the Vol. 1, p. 180. last clause of which is in these words: -

That all the Acts and (laws?) of this island which determined and expired on the 1st day of October, in the year of our Lord 1724, and not hereby or by any former Act of the Governor, Council, and Assembly now in force altered or repealed, shall be and are hereby revived and declared to be perpetual; and also all such laws and statutes of England as have been at any time esteemed, introduced, used, accepted, or received as laws in this island shall, and are hereby declared to be and continue, laws of this His Majesty's Island of Jamaica for ever.'

in

It is hardly necessary to observe that the words "perpetual" and "for ever this Colonial Act could not exclude the power of repeal or alteration by any subsequent Act of the Colonial Legislature.

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3. For the reason given in our answer to the first question, the powers, exercisable by the naval and military officers concerned in the suppression of any disturbance under the general or special direction of the Governor or officer in command of the forces, within a district where martial law has been duly proclaimed, are not susceptible of legal definition. If, in obedience to the orders of their military superiors, and under their authority, such officers should have proceeded to try by military methods persons within the proclaimed district, who may have been charged with participation in any disturbance of the peace therein, and, upon being satisfied of their guilt, to inflict upon them capital or other punishment, in accordance with the practice of such military tribunals, we are of opinion that those officers would not be civilly or criminally responsible for so doing,

4. Upon the hypothesis suggested by the concluding question (which, however, is contrary to our own view of the law) we should be of opinion that the Colonial Legislature could not pass a law which would be operative beyond the limits of the Colony (though within these limits it might be operative), to indemnify any persons who might have acted in the manner supposed.

We have, &c.

The Right Hon. Edward Cardwell, M.P.,

&c.

&c.

&c.

(Signed) ROUNDELL PALMER.

R. P. COLLIER.

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