Philips v Eyre

JurisdictionEngland & Wales
Date1870
Year1870
CourtCourt of the Queen's Bench
[QUEEN'S BENCH DIVISION] PHILLIPS v. EYRE. 1869 Jan. 29. Cockburn, C.J., Lush and Hayes, JJ.

Action - Lex fori - Lex loci - Comitas gentium extended to Colonies - Right of Action in England for acts in Foreign Country - Effect in England of Act of Indemnity by Colony - Governor of Colony can give a Legal Assent to a Legislative Enactment in his own favour.

In bar to an action for assault and false imprisonment of the plaintiff in the island of Jamaica, the defendant pleaded that since the grievances complained of, an Act of Indemnity had been passed by the legislature of Jamaica and assented to by the Crown; which enacted that all personal actions, suits, indictments, prosecutions, and proceedings, present or future, against any persons for acts done in good faith, after the proclamation of martial law, in the suppression of a rebellion which had broken out in the island, should be discharged and made void, and that any person by whom such acts had been done should be acquitted and indemnified against the Queen and all other persons; and that the defendant, the governor of the island, and all acting under his authority, were indemnified in respect of all acts done in order to put an end to the rebellion, and such acts were made and declared to be lawful. That the grievances complained of were acts done within the indemnity of the Act.

The plaintiff replied, that the defendant, at the time of the passing of the Act, was the governor of Jamaica and was a necessary party to the passing of the Act, and the Act could not have become the law of Jamaica without defendant's assent as governor. On demurrers to the plea and replication:—

Held, that local legislatures having been established in the English colonies, with plenary powers of legislation, the comity which obtains among nations should be extended to them by the tribunals of this country, when the law of the colony conflicts with the law of England, in respect of acts done within the jurisdiction of the colony. That where the right of action, in respect of an act otherwise wrongful, is taken away, before an action has been brought in this country, by a law binding where such act was done, no action can be maintained in this country. That the plea was therefore good.

Held also, that the governor of a colony could legally give his official assent to a legislative measure in which he is personally interested; and that the replication was therefore bad.

THE writ in this action was issued on the 7th of November, 1867.

The first count was for an assault and false imprisonment of the plaintiff at his house in the island of Jamaica, and causing him to be conveyed to the court-house there on the 24th of October, 1865.

Second count, for an assault and false imprisonment at the said court-house on the 25th of October, 1865.

Third count, for an assault and false imprisonment, and for forcibly conveying the plaintiff handcuffed from his house to a place called Uppuck Camp in the said island.

Fourth count, for an assault and imprisonment, and for forcibly conveying the plaintiff from Uppuck Camp to a certain place called the Ordnance Wharf.

Fifth count, for an assault and imprisonment, and for forcibly putting the plaintiff on board a ship called the Wolverine, and conveying him to a place called Morant Bay.

Sixth count, for an assault by beating and flogging the plaintiff.

Seventh count, for seizing and taking the goods and chattels of the plaintiff, and carrying them away and disposing of them to the defendant's use.

Pleas: 1. Not guilty.

2. That the defendant was captain-general and governor-in-chief of the island of Jamaica and the territories depending thereon, the same then and still being a colony or dependency of the British Crown, by virtue of a commission from her Majesty the now Queen of the United Kingdom of Great Britain and Ireland, under the Great Seal of the United Kingdom, and that divers persons in the island of Jamaica had conspired by force to overthrow the constitution and government in the island by law established, and in pursuance of the conspiracy great numbers of the inhabitants of the island had broken out into open rebellion and had committed many burglaries, robberies, arsons, murders, and other felonies, and the civil power of the island had been overpowered by the rebels, and the defendant with the assistance and co-operation of the military and naval forces of the Queen and of her faithful subjects in the island, had by force of arms arrested the progress of the rebellion, and afterwards and after the rebellion had been so arrested a certain act of parliament was made and passed by the governor, legislative council, and house of assembly of the island of Jamaica, in the 29th year of the now Queen (1865 — 1866) for the purpose of indemnifying the defendant and all other officers and persons concerned in arresting the rebellion in the island by such force of arms as aforesaid, which act is in the words and figures following:—

“Whereas being seduced by the insidious counsel of wickedly designing persons, many of the Queen's subjects in this island conspired by force to overthrow the constitution and government here established by law, and in furtherance of such their purpose, did with force and in confederated multitude commit on the 11th day of October, in this present year of our Lord 1865, and on divers other days then following, in the parish of St. Thomas in the East, many burglaries, robberies, arsons, murders, and other felonies, with treasonous purpose in renunciation of their natural allegiance, and to the intent of the general massacre of all loyal and well disposed subjects of the Queen here dwelling. And whereas upon being informed of such the aforesaid atrocities, his Excellency Edward John Eyre, Esq., the governor of this island, with the advice of a council of war and in order to prevent the extension of the rebellious outbreak, did proclaim that martial law should obtain and prevail throughout the county of Surrey, with the exception only of the city and parish of Kingston. And whereas under God's providence the military and naval forces of the Queen, with the loyal co-operation of others her Majesty's faithful subjects in this island, have arrested the spread of this rebellion and saved the lives of law-abiding citizens from imminent general sacrifice. And whereas military, naval, or civil authorities necessarily employed in the prompt suppression of the atrocities aforesaid, may, according to the law of ordinary peace, be responsible in person or purse for acts done in good faith for the purpose of restoring public peace and quelling the rebellion. And whereas it is expedient that all persons, whosoever in good faith and of loyal resolve have acted for the crushing of this rebellious outbreak, should be indemnified and kept harmless for such their acts of loyalty. Be it therefore, and it hereby is enacted by the governor, legislative council, and assembly of this island, first, that all personal actions, and suits, indictments, informations, attachments, prosecutions, and proceedings, present or future, whatsoever against such authorities or officers, civil, military, or naval, or other persons acting as last aforesaid, for or by reason of any matter or thing commanded, ordered, directed, or done, since the promulgation and publication of the proclamation of martial law aforesaid, whether done in any district in which martial law was proclaimed or in any district in which martial law was not proclaimed, in furtherance of martial law, that is to say, on, from, and after the 13th day of October last past, and during the continuance of such martial law, in order to suppress the insurrection and rebellion, and for the preservation of the public peace throughout the island shall be discharged and made void, and that every person by whom such act, matter, or thing shall have been advised, commanded, ordered, directed, or done for the purposes aforesaid, on, from, and since the 13th day of October, and during the existence of such martial law, shall be freed, acquitted, discharged, and indemnified, as well against the Queen's most gracious Majesty, her heirs and successors, as against all and every person and persons whomsoever.”

“And it is hereby also enacted, that his Excellency Edward John Eyre, Esq., captain-general and governor-in-chief, and all officers and other persons who have acted under his authority, or have acted bonâ fide for the purposes and during the time aforesaid, whether such acts were done in any district in which martial law was proclaimed, or in any district in which such martial law was not proclaimed, are hereby indemnified in respect of all acts, matters, and things done in order to put an end to the rebellion, and such acts so done are hereby made and declared to be lawful and are confirmed.”

“In order to prevent any doubt which might arise whether any act alleged to have been done under the authority of the governor, or to have been done bonâ fide in order to suppress and put an end to the rebellion was so done, it shall be lawful for the governor for the time being to declare such acts to have been done under such authority, or bonâ fide for the purposes aforesaid, and such declaration by any writing under the hand of the governor for the time being, shall in all cases be conclusive evidence that such acts were so done respectively.”

That by the laws and constitution of the island, the governor, legislative council, and assembly of the island had power and authority to make and pass the Act, subject to the assent of the Queen thereto; and that afterwards the Act duly received the assent of her Majesty, and all conditions in that behalf to be performed having been performed, and all things necessary to be done having been done, and all times necessary to elapse having elapsed, the act became, and was, and is part of the law of the island of Jamaica. That the person in the Act called his...

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