Sir George Fitzgerald Hill v Bigge and Another
| Jurisdiction | UK Non-devolved |
| Judgment Date | 04 December 1841 |
| Date | 04 December 1841 |
| Court | Privy Council |
English Reports Citation: 13 E.R. 189
ON APPEAL FROM THE COURT OF FIRST INSTANCE OF CIVIL JURISDICTION OF THE ISLAND OF TRINIDAD.
S. C., with notes in 4 St. Tr. (N.S.) 723. As to position of Colonial Governor, see Cameron v. Kyte, 1835, 3 Knapp, 332, and note thereto at p. 347; Musgrave v. Pulido, 1879, 5 A. C. 102; Anson, Law of Constitution, vol. 2, 2nd Edit., p. 475 et seq.; Forsyth, Const. Law, 80, 84.
ON APPEAL FROM THE COURT OF FIRST INSTANCE OF CIVIL JURISDICTION OF THE ISLAND OF TRINIDAD. The Right Hon. Sir GEORGE FITZGERALD HILL,-Appellant; THOMAS BIGGE and EDMOND WALLER RJJNDmA,,-Respondents * [December 4, 1841]. Plea to an action of debt, brought in the Court of First Instance in the Island of Trinidad, that the Defendant was, at the commencement of the action, and still continued to be, Lieutenant-Governor of the Island, and as such not liable to be sued; overruled. Semble:-Though judgment be given against such Governor, his person is not liable to be taken in execution while on service. The Appellant, the Right Hon. Sir George Fitzgerald Hill, on the 10th of November 1825, became bound by his writing obligatory to Philip Bundell, John Bridge, Edmond Waller Rundell, and Thomas [466] Bigge, of the City of London, jewellers, and co-partners, in the sum of £825 13s., Irish money. The Appellant, some time after giving the said bond, became Lieutenant-Governor of the Island of Trinidad and its dependencies. * Present: Lord Brougham, Lord Campbell, Mr. Justice Erskine, and the Right Hon. Dr. Lushington. 189 Ill MOORE, 467 HILL V. BIGGE [1841] On the 24th of June 1837, the Respondents, Thomas Bigge and Edmond Waller Eundell, the surviving partners of Kundell, Bridge, and Co., brought their action in the Court of First Instance of Civil Jurisdiction of the Island of Trinidad, for the recovery of the above debt. On the 13th of July 1837, the Appellant came into Court under protest, and pleaded that the said Court ought not to hear or take further cognizance of the action, because, at the time of the commencement of the said action, he was, and still continued, Lieutenant-Governor of the Island of Trinidad, and its dependencies, and that he was therefore not liable to be sued in the said Court. The Respondents demurred to the plea, and prayed judgment. The cause was declared contested, and on the 17th of November 1837 the cause was tried, and the Court, after hearing counsel in support of and against the exception pleaded by the Appellant, on the 20th of November 1837, ordered Judgment to be entered up in favour of the Respondents against the Appellant, for the amount of the debt, with interest, and all costs. From this Judgment the present Appeal was brought. Mr. Burge, Q.C., and Dr. Addams, for the Appellant.-The Appellant being Lieutenant-Governor of the Colony, is exempted from being called on for liabilities [467] in the colony over which he is placed. By the terms of his commission, he is vested with the legislative as well as the executive power (Stoke's Brit. Colonies, 150, 154, 188); his exemption cannot, therefore, be merely personal, as from arrest, but is much higher; he is not within the jurisdiction of the Courts; they are incompetent to entertain a suit, or to pronounce judgment therein against him. This privilege is not one merely of municipal law, but is founded on a higher title, viz., the Law of Nations. Thus Puffendorf, de officio hcmiinig et civis, says- " If the subject be aggrieved by a sovereign, he cannot maintain an action, or oblige him to redress: he may persuade him if he can." The same position is laid down by Locke in his Essay on Government (part 2, sec. 205), who observes, " that it is better a private mischief should ensue to an individual, than that the peace and security of Government should be violated by an attack upon the magistrate exercising the power of state; " and by the law of this country, if redress is sought for an injury committed by the Crown, it must be, if there is any redress, by petition of right (3 Black. Com. 254-5). The Statute 11 and 12 Will. III., c. 12, made to punish Governors of plantations, for crimes committed by them in such plantations, recites, that a due punishment is not provided for such offences, and that Governors, etc., have taken advantage thereof, " not deeming themselves punishable for the same here, not accountable for their crimes and offences to any person within their respective Governments and commands." Now if there was no jurisdiction against [468] a Governor in criminal matters, before the statute, a fortiori, none could have existed in civil cases, and the statute is confined to criminal offences only. The authority of the Governor of Trinidad is derived from the proclamation of the 19th of June 1813 (West Ind. Com. Trinidad, App. p. 176; 1 Howard's Col. L. 153). By that, all the powers of the executive government within the Island are vested solely in the Governor for the time being; and all such judicial powers as, previous to the surrender of the Island, were exercised by the Spanish Governors, are to be exercised by the Governor then appointed. This includes the authority and jurisdiction of the Court of Audiencia. By the constitution of the Colony under the Spanish Government, the Court of Audiencia had original, civil and criminal jurisdiction over all the inhabitants of the Island (West Ind. Com. Trinidad, p. 18), so that the Governor is, by the proclamation of June 1813, invested with like power ; can arrest, grant, or repeal the writ of habeas corpus, try actions, and do all such acts as belong to the supreme authority, acting judicially as well as executively. Now, is this consistent with his being liable to be sued in an action of debt? The doctrine of the inviolability of a Governor is derived from the Civil Law; it is expressly provided for " In jus vocari non oportet, neque Consulem, neque Prefectum, neque Praetorem, neque Proconsulem, neque caeteros Magistratus, qui imperium habent, qui coercere aliquem possunt, et jubere in carcerem duci" (Dig. Lib. 2. tit, 4, 1. 2); and has been adopted by the Spanish law (1 White's Recopolation, 367), which is the authority in Trinidad. 190 HILL V. BIGGE [1841] III MOORE, 469 In Fabrigas v. Mostyn (1 Cowp. 161), Lord C. J. Mansfield, [469] assigning the grounds of his judgment, says:-"Now in this case no other jurisdiction is shown even by way of argument: and it is most certain that if the King's Court cannot hold plea in such a case, there is no other Court upon earth that can do it, for it is truly said that the Governor is in the nature of a Viceroy, and of necessity part of the...
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