2ndly, What Laws in force in within the realm "or the dominions thereunto belonging," has been considered to embrace the plantations, as they are dominions belonging to the realm of England (1). But by the 18 Geo. 3. c. 12. s 1., the king and parliament of Great Britain declared, that from thenceforth they would not impose any duty, tax, &c. payable on any of the king's colonies, provinces, and plantations in North America or the West Indies, except for the regulation of commerce, the produce whereof is always to be applied to the use of the colony in which it is levied. The king, by virtue of his prerogative, may compel aliens who have not been made denizens or naturalized, to depart out of the plantations (2), a matter which is now regulated by particular statutes (3). So the king may establish a court of equity in one of the provinces of the plantations, if there be no clauses in the charter that exclude the power of the crown (4). The attorney and solicitor-general were of opinion, on a case submitted to them in the year 1738, that the crown had a power, by virtue of its prerogative, to erect a court of exchequer in South Carolina; which, they said, might be done by letters patent under the seal of the province, by virtue of his majesty's commission to the governor for that purpose. They were of opinion, that his majesty might erect a court of exchequer in South Carolina, with the same powers as the court of exchequer in this country; and they thought, the proceedings in the newly erected court, should conform, as much as possible, to our own practice. They were also of opinion, that the general power of erecting courts of justice, which had been conferred on the governor by his commission, was sufficient to authorize him in appointing a chief baron, but as, by the 39th instruction, the crown seemed to reserve to itself the consideration, whether a (1) By Northey Attorney General, October 18, 1705. 1 Chalmer, 2. on statute 11 W. 3.; but when statute 27 Eliz. 2. c. 2. made it high treason for any priest born within the realm, or other dominions of his Majesty, to come into the realm, &c. it was doubted whether the act extended to plantations acquired after the act was made. See also Opinions of Attorney and Solicitor General De Grey and Willes, 1767. Colonies embraced by the words " or any other of her Majesty's dominions." 1 Chalm. 200. Doubted whether King's prerogative as to patents (under 21 Jac. 21. c. 3.) extends to the plantations, by Raymond and Yorke, Attorney and Solicitor General, 18th July 1720. 1 Chalm. Opin. 203. (2) By Northey Attorney General, October 18, 1705. 1 Chalm. 4. ante 143. and 12 Car. 2. c. 18. s. 2. ante 148. (3) Ante, 152 & 148. 4) By Sir E. Northey Attorney General, 1 Chalm. 183. 21st April 1703. Massachuset's Bay. ་ Colonies. standing court of exchequer should be erected or not, and as 2ndly, What doubts had arisen in the province respecting the authority of Laws in force in the existing chief baron, they conceived it was not advisable to rest the authority of erecting the court and appointing the chief baron on the present commission andinstructions, but that a special commission should be issued to the governor, authorizing the establishment of a court of exchequer, and the constitution of the chief baron and other officers (1). Sir Dudley Ryder was of opinion, on a case submitted to him respecting the establishment of a criminal court at Newfoundland, that a power to take cognizance of capital crimes could not be granted to the governor of that country by instructions only signed by his majesty in council, but that it ought to be under the great seal, and therefore, if thought advisable to be granted, ought to be inserted in the governor's commission; but he also said, that the manner of exercising such power might be prescribed and limited by instructions, for any breach of which the governor would be answerable to his majesty. He thought that neither the power of trying, nor that of pardoning treasons, was fit to be delegated to the governor, nor any court to be erected by him (2). But the stat. 10 & 11 W. 3. c. 25. s. 13., which authorized the trial of capital offences committed in Newfoundland in any county of England, did not take away or affect the king's prerogative to erect courts of justice in Newfoundland, for the trial of all sorts of crimes committed there; so that his majesty was at liberty, after the making of that act, to erect and constitute such courts there, for the trial of capital and other crimes, as he might think proper. (3) With respect to the general efficacy of the king's prerogatives in the colonies, it is stated, in the opinion of an eminent counsel, the nature of whose office led him to a frequent consideration of matters of plantation law, that the prerogative in the West Indies, unless where it is abridged by grants, &c. made to the inhabitants of the respective provinces, is that power over the subjects, (1) By Sir J. Strange and Sir D. Ryder, Attorney and Solicitor General, 12th June 1738. 2 Chalm. 169. (2) By Sir D. Ryder Attorney General, 27th March 1750. 2 Chalm. 241. See the next note. (3) By Sir D. Ryder, 30th Ja nuary 1749. 2 Chalm. 240. vide 2ndly, What Colonies, &c. considered either separately or collectively by their representaLaws in force in tives, which by the common law of the land, abstracted from all acts of parliament and grants of liberties, &c. from the crown to the subjects, the king could rightfully exercise in England. (1) Punishment of 3dly, The common law of England, like the laws of most other countries, considers crimes as local in their nature, and proper to be tried in the place where the offences were committed. On account of this rule, a statute was passed in the reign of William and Mary, to enable the governors of plantations to be tried in this kingdom for crimes committed in the plantations. The statute 11 & 12 W. 3. c. 12. enacts (2), that if any governor, lieutenant governor, deputy governor, or commander in chief of any plantation or colony within his Majesty's dominions beyond the seas, shall be guilty of oppressing any of his Majesty's subjects beyond the seas within their respective governments or commands, or shall be guilty of any other crime or offence contrary to the laws of this realm, or in force within their respective governments or commands; such oppressions. crimes, and offences, shall be tried in the court of King's Bench in England, or before such commissioners and in such county of the realm as shall be assigned by his Majesty's commission; and that the same punishments shall be inflicted as are usually inflicted for offences of the like nature when committed in England. Another statute has been since passed of more extensive operation, to secure the trial and punishment of persons holding public employments who might be guilty of crimes abroad; the statute 42 G. 3. c. 85. provides, that any person holding a public station, office, or employment out of Great Britain, and guilty of an offence in the exercise of his public functions, may be tried in the King's Bench on an information exhibited by the attorney general, or an indictment found; and all persons so offending and tried under this act or the statute of W., shall receive the same punishment as is inflicted on similar offences committed in England, and are also liable, at the discretion of the court, to be adjudged incapable of serving his Majesty or holding any public employment (3). So the East India bill, 13 G. 3. c. 63. autho (1) 1 Chalm. Opin. 233. Opinion of Mr. West, counsel to the Board of Trade, May 27, 1719. Doubted whether prerogative as to patents under 21 Jac. 1. c. 3. extends to plantations, by Raymond and Yorke, Attorney and Solicitor General, 18th July 1720. 1 Chalm. Op. 203. (2) See Decisions, 1 Chitty, C. L. 150, 151, 157. (3) 42 Geo. 3. c. 85. s. 1 & 2. 8 East, 31. rized the trial of offences committed by his Majesty's subjects in 2ndly, What India, in the court of King's Bench (1). And the statute 24 G. 3. Laws in force in Colonies, and c. 64. contained some special provisions for the trial of British Redress for subjects holding public employments in the East Indies, who Crimes and Injuries. might be guilty of extortion and other misdemeanors (2). It is also proper to notice, that the trial of treason, of murder, and of manslaughter, when committed out of the realm, is provided for by the statutes 35 Hen. 8. c. 2. 33 Hen. 8. c. 23. and 43 Geo. 3. c. 113. and the statute 28 Hen. 8. c. 15. which authorised the trial of treasons, felonies, robberies, and murders (3) committed on the high seas; and it seems to have been considered that this act extends to the colonies, though they were established before the act was passed, and that a commission might issue into any county within the realm of England, to try an offender guilty of murder on the high seas, who might be brought over for that purpose, and the witnesses examined, and the jury sworn before the commissioners (3). But without the aid of an act of parliament, an indictment will not lie in the King's Bench for an offence committed in the plantations, as was expressly held by Lord Kenyon, on an indictment against a storekeeper employed by government at Antigua in the West Indies; but it was also holden, that as the fraud committed by the defendant in the West Indies had been supported by false returns made to the navy office in London, the jurisdiction of the court attached. (4) Trespasses and injuries to real property are also local according to our law, so that no action can be maintained in the courts of justice in this country for a trespass or injury committed on real property in one of the plantations where there is any court of justice (5). This technical rule had indeed been relaxed in practice by Lord Chief Justice Eyre and Lord Mansfield, in favour of places beyond the seas within the king's dominions; and in one case an action was held maintainable in this country against Captain Gambier for a trespass committed in Nova Scotia by pulling down the houses of some settlers who supplied the (1) 13 G. 3. c. 63. s. 39. (2) 24 G. 3. c. 25. s. 64. & seq. (3) Opinion of King's Advocate Hay, and Attorney and Solicitor General Yorke and Norton, 1762, 1 Chalmers 199; also of opinion, that the 11 & 12 W. 3. c. 7. and 11 Geo. 1. c. 29. s. 7. did not extend to murder, but only to such felonies as were equal or inferior to c. 37. (4) Rex v. Munton, 1 Esp. Rep. 62. 6 East, 590. S. C. before the passing of the 42 G. 3. c. 82. (5) Doulson v. Matthew, 4 T.R, 503. 2ndly, What Laws in force in Colonies, and Redress for Crimes and Injuries. seamen with spirituous liquors. An objection was taken to the count for pulling down the houses, and a case was cited in which an action for an injury committed to real property abroad was held not to be sustainable (1). But Lord Mansfield overruled the objection. He said that the injury was committed on the coast of Nova Scotia, where there were no regular courts of judicature; that if there had been, Captain Gambier might never go there again; and therefore the reason of the locality of such an action, when brought for an injury committed in England, could not be applied to the case before the court (2). But whatever doubts may have been formerly entertained, it seems to be now settled, that no action or suit in equity can in general be maintained in this country for an injury to real property out of the kingdom, as for instance, for entering a house in Canada. Actions which are in their nature transitory, may be tried in this country, though they arise out of a transaction that took place abroad, but not such as are in their nature local (3). So a bill for the delivery of the possession of lands in Saint Christopher cannot be supported, though it might to account for the rents thereof; for lands in the plantations are no more under the jurisdiction of the court of chancery than lands in Scotland, as that court only agit in personam (4). A contract however relating to possessions in the colonies may be enforced or executed in personam in a court of equity here (5). But where the question upon the construction of the contract for a security by way of mortgage having been before a court of competent jurisdiction in the colony, and a foreclosure and judicial sale directed, and certain allegations of fraud were merely general and denied, an injunction was refused in the court of Chancery in England on the ground of a want of jurisdiction to interfere; but it was intimated that the lords of the council might perhaps give some directions to prevent a sale until an appeal (6). It has been decided, that from a decree respecting lands in the Isle of Man or in the plantations, an appeal generally lies to the king in council, and no words in a grant can deprive a subject of his right to appeal, much less if the grant be silent (7). (1) Skinner v. East India Company, Cowp. 167, 168. (2) Cowper, 180, 181. (3) Doulson v. Matthews, 4 T. R. 504. Skinner v. the East India Company, Cowp. 167. Roberdean v. Rous, 1 Atk. 543. Penn v. Lord Baltimore, 1 Ves. 444. Stokes on Law of Colonies, 9. (4) Roberdean v. Rous, 1 Atk. 544. (5) Penn v. Lord Baltimore, 1 Ves. 444. White v. Hall, 12 Ves. J. 321. Jackson v. Petrie, 10 Ves. J. 165. (6) White v. Hall, 12 Ves. J.321. (7) Christian v. Corren, 1 P. W. 329. 2 P. W. 262. Sel. Ca. Ch. 5. 9 Mod, 124. |