[L. R.] 6 Q.B. 1
[IN THE EXCHEQUER CHAMBER.]
PHILLIPS v. EYRE.
1870 June 23.(1)
Kelly, C.B., Martin, Channell, Pigott, and Cleasby, BB., Willes and
Brett, 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 legally
give assent to a legislative enactment in his own favour - Power of
Crown to create a local Legislature in a colony - Duty of Governor in
case of Insurrection.
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 scope of the Act.
The plaintiff replied, that the defendant, at the time of the passing
of the Act,
(1) This case was decided in the sittings after Trinity Term.
[*2] 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 the defendant's assent as governor. On demurrers to
the plea and replication:-
Held: First, that the Crown had power to create a local legislature in
a dependency of the Crown whether conquered, ceded, or settled.
Secondly, that the Act of Indemnity was not repugnant to 11 & 12 Will.
3, c. 12, within the meaning of 28 & 29 Vict. c. 63, so far as the Act
of Indemnity related to civil proceedings. Thirdly, that, although the
Act of Indemnity was retrospective in its nature, it had effect
without the limits of Jamaica so as to prevent an action from being
brought in England, and therefore that the plea was 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.
ERROR from the judgment of the Court of Queen's Bench in favour of the
defendant on demurrer(1).
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 ****p 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
(1) Law Rep. 4 Q. B. 225.
[*3] 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 twenty-ninth year of the now
Queen (1865-66), 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 purposes, 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
[*4] 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 cru****ng 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, information, 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 bon=E2
fide for the purposes and during time aforesaid, whether such acts
were done in any district in which martial law
[*5] 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 bon=E2 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 bon=E2 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 Excellency Edward John Eyre, Esq., was and is the
defendant, and that the alleged grievances in the declaration
mentioned were committed in the island of Jamaica after the 13th of
October, 1865, and during the continuance of the rebellion, and before
the passing of the Act, and were measures used in the suppression of
the rebellion, and were reasonably and in good faith considered by the
defendant to be proper for the purpose of putting an end to the
rebellion, and were matters and things bon=E2 fide done in order to put
an end to the rebellion, and are included in the indemnity given by
the Act.
Replications: 1. Issue joined on the pleas.
2. Demurrer to the second plea and joinder.
3. To the second plea, that the plaintiff sues not only for the
tresp***** as are complained of and not included in the Act, but for
other tresp***** on other occasions, for longer periods of time,
[*6] and in other places than are attempted to be justified or
excused, and in excess of the alleged right or excuse.
4. As to the second plea, so far as it relates to divers of the
tresp***** committed on the high seas, and mentioned in the fifth
count, the plaintiff says that the tresp***** were committed beyond
the territorial limits within which the Jamaica legislature had at the
times or at the time when the Act was made and passed jurisdiction or
authority.
5. To the defendant's second plea, that the defendant, at the time of
the making and passing of the Act in the plea set forth, was the
governor of the island of Jamaica and the territories thereon
depending, and was then present in the island, and was then acting in
such capacity of governor of the island, and is the governor referred
to in the Act, in the words "Be it therefore, and is hereby enacted by
the governor, legislative council, and assembly of this island;" and
was by the law and constitution of Jamaica, himself a necessary party
to the making and passing of the Act; and the Act, so far as it became
the law of Jamaica was, by virtue of his consent as such governor,
acting with the council and assembly, and could not have become the
law of Jamaica, without the consent of the defendant as such governor.
Demurrer to the fifth replication and joinder.
Feb. 2 and 3. Quain, Q,C. (J. H. Payne, with him), for the plaintiff.
First, the legislature of Jamaica being a mere subordinate and
dependent legislature, has no power to pass an Act of indemnity
depriving any one of the Queen's subjects without compensation of all
remedy for wrongs committed upon him. The Jamaica legislature was not
created by any Act of parliament; it was created by charter granted
under the great seal, accompanied by instructions. The crown has no
powers to create a legislature capable of passing a valid Act of
indemnity, because colonial legislatures, whether they are created by
charter or Act of parliament, are, prim=E2 facie, subordinate bodies
with limited powers, and though the imperial parliament may create a
legislature with authority to pass an Act of indemnity, that is beyond
the competence of the crown. It is clear from Story's Commentaries on
the American Constitution, vol. i., pp. 171, 185, that the powers
exerciseable by [*7] the Jamaica legislature must be sought for in the
charter and instructions granted to that colony. An account of the
charters granted to Jamaica, beginning with the year 1660 (O. S.),
will be found in Chambers' Opinions, vol. i. p. 206. In Campbell v.
Hall (1), Lord Mansfield treats Jamaica as a settled colony, while, on
the other hand, Lord Wensleydale, in Beaumont v. Barrett (2), treats
it as a conquered colony; but whether a conquered or a settled colony,
the Crown did issue a commission to create an assembly subject to the
provisions contained in the instructions which accompanied it; but the
Crown could not confer upon the legislature authority to pass an Act
of indemnity; it could not do so in express terms, and certainly not
by implication: Campbell v. Hall. (3) It is clear that the Crown could
not confer the power to pass a bill of attainder. No colony has ever
passed such an Act. The fact that they have never done so is strong
evidence that they have not this power. The North American colonies,
after the rebellion commenced and before their recognition, passed
such Acts, but in this country such Acts were held to be nullities:
Ogden v. Folliot. (4)
[WILLES, J. In a foreign sovereign state an Act of attainder has no
validity, as the Court of Common Pleas held in Kynnaird v. Leslie.
(5)]
This Act of indemnity is tantamount to a bill of attainder, which is a
statute depriving a subject of his previously existing rights. Neither
can the crown confer on colonial legislatures a power to inflict
torture: Picton's Case (6); nor to make legitimate a bastard; and it
was a question whether they could pass an Act to naturalize an alien;
for the king cannot grant to any other to make of strangers born
denizens: it is by the law itself so inseparably and individually
annexed to his royal person: Calvin's Case (7); but the power to
naturalize has been expressly conferred on all colonies by 10 & 11
Vict. c. 83. It is now well settled that the legislature of a colony
cannot commit for contempt: Beaumont v. Barrett (8), overruled by
Kielly v. Carston (9); Fenton v.
(1) Cowp. 204. See also Rex v. Vaughan, 4 Burr. at p. 2500.
(2) 1 Moo. P. C. at p. 75.
(3) Cowp. at p. 209.
(4) 3 T. R. 726.
(5) Law Rep. 1. C. P. 389.
(6) 30 State Tri. 225.
(7) 7 Co. Rep. 25 b.
(8) 1 Moo. P. C. 59.
(9) 4 Moo. P. C. 63.
[*8] Hampton (1); Doyle v. Falconer (2); Din v. Murphy. (3) These
cases shew how subordinate and dependent colonial legislatures are;
they cannot protect themselves even by committing for contempt. Bowman
v. Middleton (4) is a case where a statute of a colonial legislature
being against common right and Magna Charta, was held invalid a
century after it had been passed. This is a strong instance of the
limited powers of dependent legislatures. The imperial legislature has
power to pass an Act of indemnity only because it has judicial
functions, such an Act being similar to an injunction granted by the
Court of Chancery, as it stays the prosecution of an action without
compensation; thus in Calder v. Bull (5), Chase, J., commenting on
Acts of attainder and bills of pains and penalties, in effect says,
that they are judgments of the legislature, and are passed in exercise
of judicial functions. But, inasmuch as the power to commit is
inseparable from the exercise of judicial functions in a court of
record, colonial legislatures being without that power, as is clear
from the cases already cited, are not judicial bodies. The legislature
of Jamaica being created by charter from the Crown in a settled
colony, had no power to pass an Act of indemnity, that power being
reserved to the imperial legislature by reason of its judicial
functions.
With regard to the Acts of indemnity which have been passed from time
to time, and which are collected in the re****t of the case in the
Court below, the Irish Acts do not form any precedent for the present
Act. It is im****tant to see if they were passed before 1783. Up to
that time Ireland was treated as a conquered country: Craw v. Ramsey
(6); since that time it has been declared an independent kingdom. See
22 Geo. 3, c. 53, and 23 Geo. 3, c. 28. Since this last Act, the Irish
legislature was not a subordinate legislature, but omnipotent, and had
the same right to pass Acts of indemnity as an imperial parliament;
all the Irish Acts of indemnity, except the 3 Geo. 3, c. 19, were
passed subsequent to 1783; but that Act is of slight operation. With
regard to the Acts of indemnity passed by the different colonies,
(1) 11 Moo. P. C. 347.
(2) Law Rep. 1 P. C. 328.
(3) 1 Moo. P. C. (N.S.) 487.
(4) 1 Bay, 252.
(5) 3 Dallas, 386.
(6) Vaughan, 292.
[*9] their validity has never been questioned in an English court of
justice; the fact of their having been passed is of no weight.
Secondly, the Act of Indemnity is void, on the ground that it is
repugnant within the meaning of 28 & 29 Vict. c. 63, ss. 2 & 3, to 11
& 12 Will. 3, c. 12. The last-mentioned Act provides that the governor
of a colony who oppresses British subjects shall be triable in
England: the Act of Indemnity attempts to relieve the governor from
liability to legal proceedings of every kind. It is therefore
repugnant to the law of England.
Thirdly, even if the Act of Indemnity is valid in Jamaica, it can have
no extra-territorial operation, and cannot be set up as a defence to
an action in a court of justice in England for a wrong committed in
Jamaica. The plaintiff had a right of action vested in him the moment
the wrong was done. He could then have brought an action in Jamaica or
in England; if he had an alternative remedy, the Jamaica legislature
had no power to divest him of his remedy in England. The Court here
will not consider whether any remedy exists in Jamaica for the wrong
done to the plaintiff there: Scott v. Seymour (1).
Fourthly, even if the Act of Indemnity be valid in Jamaica and is to
be adopted in this country by reason of comity, on the footing of
foreign law, yet this doctrine does not extend to ex post facto
legislation rendering acts legal which were previously illegal. The
comity of nations only recognizes the law of the foreign country where
the wrong was committed, as the law existed at the time when the wrong
was done. It does not recognize subsequent legislation altering the
character of the wrong, for it is against common right to take away,
without compensation, a cause of action once vested. The best
illustration on the present point, is the manner in which contracts
made in foreign countries are dealt with: for, as no nation is bound
to enforce any contract injurious to the interests of its subjects
(Story's Confl. of Law, par. 244), so the wrongful discharge by the
law of a foreign country from the liability on a contract entered into
within its dominions, will not be recognized by an English court,
Wolff v. Oxholm (2). In that case, the wrongful confiscation of a debt
due to British subjects was held not to exempt the debtor from the
payment of
(1) 1 H. & C. 219; 32 L. J. (Ex.) 61.
(2) 6 M. & S. 92.
[*10] the debt. Story on the Confl. of Laws, par. 337, citing
Blanchard v. Russell (1), is to the same effect. A passage in the
charge of Blackburn, J., in Reg. v. Eyre (2), seems to shew that the
Act of Indemnity would be no answer to an indictment in England; the
same reasoning is applicable to a civil action. They both stand on the
same footing; if it is no answer to the one it is no answer to the
other.
February 3, 4. Mellish, Q.C. (H. S. Giffard, Q.C., and Polandwith
him), for the defendant. It is not correct that, where the colonial
legislature has passed an Act of indemnity in favour of a governor for
acts done there, the persons injured are remediless. They have two
remedies. The Crown may disallow the Act, or the imperial parliament
may declare it void as to England. As to the first point. With regard
to the cases cited for the plaintiff, wherein it was decided that the
colonial legislature have no power to commit for contempt, it is to be
remarked, that they do not decide if a colonial legislature passed a
statute empowering itself to commit, such a statute would be void.
Those cases, however, when carefully examined, do decide that colonial
legislatures possess supreme legislative power; but that power is
subordinate to parliament. Campbell v. Hall (3) has no bearing on this
case. It only decides, that after the Crown has created a legislature
in a conquered colony, it loses its power of levying taxes by its own
authority. It is rather an authority in favour of the defendant as
shewing that a colonial legislature is an independent body. It is true
that, according to the constitution of the United States, a state
legislature has no power to pass an ex post facto law, and this means
that no law can be passed which renders an act punishable in a manner
in which it was not punishable when it was committed: Kent's
Commentaries, vol. i., s. 408, p. 458, 10th ed., Fletcher v. Peck (4),
Calder v. Bull (5). Neither does Folliott v. Ogden (6), bear on this
point; it merely decided that a rebellious colonial legislature could
not pass an Act of confiscation. It is conceded that there is no
direct authority to guide the decision of this
(1) 13 Mass. Rep. 1.
(2) Finlason Rep. p. 101.
(3) Cowp. 204; 20 State Trials, 239.
(4) 6 Cranch, at p. 142.
(5) 3 Dallas, 386.
(6) 1 H. Bl. 123.
[*11] case: it is therefore im****tant to bear in mind the course of
legislation respecting Acts of indemnity. The fact that, from very
early times, the parliament of England has passed such Acts, ought to
have considerable weight. The first Act is 1 Edw. 3, st. 1, c. 1; but
the Act passed in 5 Rich. 2, st. 1, c. 5, is very like the present.
This Act is remarkable as shewing the early principle of the
constitution, for it is admitted in the statute that, even when an
insurrection of villeins was to be repressed, it was contrary to law
to proceed against them otherwise than by process of the law. The Act
itself is a complete Act of indemnity. Other Acts of indemnity will be
found in the re****t of the case below(1). Then there are the Acts of
indemnity passed by the Irish Parliament. The argument on the other
side, with regard to these Acts, is not sound. If the cause of action
in Ireland only was taken away by the Irish Acts, it would have been
necessary, after the Great Rebellion in 1798, to pass an Act of
indemnity in England; but that has never been thought requisite. The
present Act appears to have been taken from 39 Geo. 3, c. 3, which
deals not only with the future, but extends to actions then already
commenced, and also to judgments recovered.
[MARTIN, B. Only one action brought for acts done during the great
rebellion was successful.]
Wright v. Fitzgerald (2). The defendant, in that case, acted from
private malice and not for the public good. Acts of indemnity have
been passed in the colonies, for instance, New Zealand, St. Vincent,
Ceylon, Antigua, and Lower Canada(3): in none of these cases has the
Colonial Act been confirmed by the Imperial Parliament. When a colony
is a pure Crown colony, and has no Assembly, there the Imperial
Parliament has passed an Act; for instance, the 17 & 18 Vict. c. 37 is
an Act passed by the Imperial Parliament, indemnifying the Chief
Justice of the Mauritius, for having acted as judge in the Vice-
Admiralty Court, without authority.
The next point is, is the Act of indemnity repugnant to the 11 & 12
Wm. 3, c. 12, within the meaning of 28 & 29 Vict. c. 63? The meaning
of the word repugnant, as used in 28 & 29 Vict. c. 63,
(1) Law Rep. 4 Q. B. at p. 232.
(2) 27 State Trials, 759.
(3) See Law Rep. 4 Q. B. at p. 232.
[*12] is, that when the imperial legislature has forbidden the
colonial legislature to pass a particular statute, such a statute
shall not hereafter be enacted in the colony; but under the provisions
of that Act, every other kind of statute may be passed by the colonial
legislature, and an Act of indemnity is not expressly forbidden. But
even if the 28 & 29 Vict. c. 63, had not been passed, the Act of
Indemnity could not be repugnant to 11 & 12 Wm. 3, c. 12. That Act
does not in any way relate to civil proceedings; nor does it make an
act an offence which was not one before. The law is, that a governor
who was guilty of oppression in a colony could not be indicted in the
colony as long as he was governor; and as, in all probability, the
moment he ceased to be governor, he left the colony, and could only be
indicted in England for acts committed in England, the only object of
the Act was to allow a governor of a colony to be proceeded against
for acts done abroad. Therefore the Act of Indemnity is in no way
repugnant to the 11 & 12 Wm. 3, c. 12.
The other two questions must be taken together. The argument is, the
moment the illegal act is committed in Jamaica, the injured person has
a vested right to bring an action here, and that vested right cannot
be taken away by legislation in Jamaica. The Court below have given a
valid answer to that argument(1), where, after citing Reg. v. Lesley
(2), and Dobree v. Napier (3), they come to the conclusion that, if
the Acts had bee rendered lawful by prospective legislation, no action
would lie, and that the same principle, which is applicable to an act
made lawful by previous legislation, is equally applicable to an act
originally wrongful, but legalized by an ex post facto law. There is
no difference in the law, as applicable to contracts made or torts
committed abroad. The law with regard to torts is clearly laid down in
the case of The Halley (4), that in order that an action may be
maintained in the courts of this country for a wrong committed in a
foreign country or colony, the wrong must be one for which an action
can be maintained both in the foreign country and in this country. It
is a fallacy to say that the right of action is vested in England, it
is no more vested in England than it is at
(1) See Law Rep. 4 Q. B. at p. 239.
(2) Bell, C. C. 220; 29 L. J. (M. C.) 97.
(3) 2 Bing. N. C. 781.
(4) Law Rep. 2 P. C. 193.
[*13] New York or in Canada, or any other part of the world. If an
action were brought anywhere else than in England, would not the Act
of Indemnity be a bar? The comity of nations requires that a person
indemnified by a law in one country for acts done in that country,
shall be protected in every other country against legal proceedings in
respect of those acts.
A different question arises on the replication; but it is conceded by
the plaintiff's counsel that the governor of a colony had power to
give his consent to an Act indemnifying himself.
Quain, Q.C., in reply. The powers of colonial legislatures are
limited. The 15 & 16 Vict. c. 72, s. 19, contains a good exposition of
the laws which are beyond the competence of a colonial legislature. It
is conceded that the imperial legislature may give legislative bodies
in dependencies supreme powers. See 30 & 31 Vict. c. 3, s. 94, and 24
& 25 Vict. c. 67. If the contention on the other side be right, the
imperial legislature need not have passed 17 & 18 Vict. c. 37. The
Mauritius was a conquered colony, and the power of the Crown was
supreme. It is said that the Courts of England will not inquire into
the validity of laws in foreign countries; but this is not in
accordance with Story on the Conflict of Laws, s. 258.
[KELLY, C.B. Thackoorseydass v. Dhondmull (1) shews the great regard
that is paid to the law, not only of foreign countries, but even of
dependencies, however much it may be in conflict with the law of
England.]
That case was an appeal from an action brought in India, and had to be
decided by the law of India.
Cur. adv. vult.
June 23. The judgment of the Court (Kelly, C.B., Martin, Channell,
Pigott, and Cleasby, BB., Willes and Brett, JJ.) was delivered by
WILLES, J. This is an action complaining of false imprisonment and
other injuries to the plaintiff by the defendant in the island of
Jamaica. The plea states in effect that the defendant was governor of
the island; that a rebellion broke out there which the governor and
others acting under his authority had arrested
(1) 6 Moo. P. C. 300.
[*14] by force of arms; that an Act was afterwards duly passed by the
legislature of the island, and received the royal assent, by which,
after reciting the rebellion, a proclamation of martial law within
certain local limits by the governor with the advice of a council of
war, that the rebellion had been suppressed and imminent general
sacrifice of life thereby averted, that the military, naval, or civil
authorities might, 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 that
all persons who in good faith and loyal resolve had acted for the
cru****ng of the rebellious outbreak ought to be indemnified and kept
harmless for such their acts of loyalty, it was enacted by the
governor, legislative council, and assembly of the island, amongst
other things that the defendant and all officers and other persons who
had acted under his authority, or had acted bon=E2 fide for the purpose
and during the existence of martial law, whether done in any district
in which martial law was proclaimed or not, were thereby indemnified
in respect of all acts, matters, and things done in order to put an
end to the rebellion, and all such acts were "thereby made and
declared lawful, and were confirmed." The plea further states that the
grievances complained of in this action were measures used in the
suppression of the rebellion, and were reasonably and in good faith
considered by the defendant to be proper for the purpose of putting an
end to, and bon=E2 fide done in order to put an end to, the rebellion,
and so were included in the indemnity. To this plea the plaintiff,
demurred, and also replied that the defendant as governor was, by the
law of Jamaica, a necessary party to the making of the Act. The
defendant demurred to that replication, and issues in law were raised
upon the validity of the plea and replication, upon which issues the
Court of Queen's Bench gave judgment for the defendant, whereupon the
plaintiff has assigned error.
The case was very fully argued at the sittings after Hilary Term, by
Mr. Quain for the plaintiff and Mr. Mellish for the defendant, when we
took time to consider.
It was agreed at the bar that, for the purpose of this argument, the
decision ought to turn upon the Colonial Act, and numerous objections
were urged against its validity and effect. Before discussing [*15]
these objections in detail it may be convenient to consider generally
the condition of the governor of a colony and other subjects of Her
Majesty there in case of open rebellion. To a certain extent their
duty is clear to do their best and utmost in suppressing the
rebellion. Even as to tumultuous assemblies and riots of a dangerous
character, though not approaching to actual rebellion, Tindal, C.J.,
in his charge to the Bristol grand jury on the special commission upon
the occasion of the riots in 1832(1), there, in accordance with many
authorities, stated the law as to private citizens. "In the first
place, by the common law every private individual may lawfully
endeavour, of his own authority and without any warrant or sanction of
the magistrate, to suppress a riot by every means in his power. He may
disperse, or assist in dispersing, those who are assembled; he may
stay those who are engaged in it from executing their purpose; he may
stop and prevent others whom he may see coming up from joining the
rest; and not only has he the authority, but it is his bounden duty,
as a good subject of the king, to perform this to the utmost of his
ability. If the riot be general and dangerous, he may arm himself
against the evildoers to keep the peace. Such was the opinion of all
the judges in the reign of Queen Elizabeth in a case called the Case
of Arms(2) (see Rex. v. Inhabitants of Wigan) (3), although the judges
add that it would be more discreet for every one in such a case to
attend and be assistant to the justices, sheriffs, or other ministers
of the king in doing this. It would undoubtedly be more advisable so
to do, for the presence and authority of the magistrate would restrain
the proceeding to such extremities until the danger was sufficiently
immediate, or until some felony was committed, or could not be
prevented without recourse to arms; and, at all events, the assistance
given by men who act in subordination and concert with the civil
magistrate will be more effectual to attain the object proposed than
any efforts, however well intended, of separated and disunited
individuals. But if the occasion demands immediate action, and no
op****tunity is given for procuring the advice or sanction of the
magistrate, it is the duty of every subject to act for himself and
upon his own responsibility in suppressing a riotous and tumultuous
assembly,
(1) 5 C. & P. at p. 262.
(2) Popham, 121.
(3) 1 W. Bl. 47.
[*16] and he may be assured that whatever is honestly done by him in
the execution of that object will be sup****ted and justified by the
common law."
This perilous duty, shared by the governor with all the Queen's
subjects, whether civil or military, is in an especial degree
in***bent upon him as being entrusted with the powers of government
for preserving the lives and property of the people and the authority
of the Crown; and if such duty exist as to tumultuous assemblies of a
dangerous character, the duty and responsibility in case of open
rebellion are heightened by the consideration that the existence of
law itself is threatened by force of arms and a state of war against
the Crown established for the time. To act under such cir***stances
within the precise limits of the law of ordinary peace is a difficult
and may be an impossible task, and to hesitate or tem****ize may entail
disastrous consequences. Whether the proper, as distinguished from the
legal, course has been pursued by the governor in so great a crisis,
it is not within the province of a court of law to pronounce. Nor are
we called upon to offer any judicial opinion as to the lawfulness or
propriety of what was done in the present case, apart from the
validity and legalizing effect of the colonial Act. It is manifest,
however, that there may be occasions in which the necessity of the
case demands prompt and speedy action for the maintenance of law and
order at whatever risk, and where the governor may be compelled,
unless he shrinks from the discharge of paramount duty, to exercise de
facto powers which the legislature would assuredly have confided to
him if the emergency could have been foreseen, trusting that whatever
he has honestly done for the safety of the state will be ratified by
an Act of indemnity and oblivion. There may not be time to appeal to
the legislature for special powers. The governor may have, upon his
own responsibility, acting upon the best advice and information he can
procure at the moment, to arm loyal subjects, to seize or secure arms,
to intercept munitions of war, to cut off communication between the
disaffected, to detain suspected persons, and even to meet armed force
by armed force in the open field. If he hesitates, the op****tunity may
be lost of checking the first outbreak of insurrection, whilst by
vigorous action the consequences of allowing the insurgents to take
the field in force [*17] may be averted. In resorting to strong
measures he may have saved life and property out of all pro****tion to
the mistakes he may honestly commit under information which turns out
to have been erroneous or treacherous. The very efficiency of his
measures may diminish the estimate of the danger with which he had to
cope, and the danger once past, every measure he has adopted may be
challenged as violent and oppressive, and he and every one who advised
him, or acted under his authority, may be called upon, in actions at
the suit of individuals dissatisfied with his conduct, to establish
the necessity or regularity of every act in detail by evidence which
it may be against public policy to disclose.(1) The bare litigation to
which he and those who acted under his authority may be exposed, even
if defeated by proving the lawfulness of what was done, may be
harassing and ruinous. Under these and like cir***stances it seems to
be plainly within the competence of the legislature, which could have
authorized by antecedent legislation the acts done as necessary or
proper for preserving the public peace, upon a due consideration of
the cir***stances to adopt and ratify like acts when done, or, in the
language of the law under consideration, to enact that they shall be
"made and declared lawful and confirmed." Such is the effect of the
Act of Indemnity in question, which follows the example of similar
legislation in the another country and in other dominions and colonies
of the Crown.
In England, upon numerous occasions from the fourteenth century
downwards, similar laws have been passed after great troubles, with
the view of indemnifying those who took arms to maintain the authority
of the Crown, and of putting an end to occasions of discord, even by
way of general Act of oblivion, prohibiting civil suits and criminal
prosecutions in respect of acts done in the course of a rebellion.
Amongst these are 1 Edw. 3, stat. 1, c. 1, stat. 2, c. 3; 14 Edw. 3,
stat. 1, cc. 2, 3; 5 Rich. 2, stat. 1, c. 5; 21 Rich. 2, c. 14; 7 Hen.
4, c. 18; 1 Hen. 5, c. 6; 1 Hen. 7, c. 6; 12 Car. 2, c. 11 (after the
Grand Rebellion); 1 W. & M. stat. 2, c. 8; 2 W. & M. stat. 2, c. 13; 4
& 5 W. & M. c. 19 (after the Revolution); 1 Geo. 1, stat. 2, c. 39
(after the rising of 1715); 19 Geo. 2, cc. 20, 39, s. 18 (after the
rising of 1745), reciting as the gist of the matter that it was
"reasonable that acts done for
(1) See the recitals of the Indemnity Act, 41 Geo. 3, c. 66.
[*18] the public service, though not justifiable by the strict forms
of law, should be justified by Act of Parliament." The principle of
these enactments is indemnity for what was done in zeal for the public
service, and a politic oblivion of the troubles and dissensions of the
past, so that, to use the language of the Act of "Grace and General
Pardon, Indemnity, and Oblivion" passed at the Restoration, "No
mention be made thereof in time to come, in judgment or judicial
proceeding." In like manner an Act of Indemnity was passed by the
Irish Parliament after the Rebellion of 1798, 39 Geo. 3, c. 3, amended
by 39 Geo. 3, c. 50, and further enforced by 40 Geo. 3, c. 89. The
earlier Act of the Irish Parliament (3 Geo. 3, c. 19), is an instance,
though but slight, of the same kind. And similar legislation appears
to have taken place in the colonies - for instance, at the Cape in
1836, 1847, and 1853; in Canada in 1838; in Ceylon in 1848; in St.
Vincent in 1862; and in New Zealand in 1865, 1866, and 1867. In 1866
the New Zealand Act was disallowed by the Crown, and all such
legislation is subject to the same control.
This series of precedents was acknowledged to exist: but it was
contended that they were misleading, and that the colonial Act was,
notwithstanding, either altogether unauthorized and futile, or at
least unavailing as regarded the defendant, or that, if valid, its
operation was restricted to the limits of the island, and ineffectual
to bar an action in any other part of Her Majesty's dominions. We
proceed to consider these various objections.
Doubts were suggested in this court upon what was taken for granted in
the argument and judgment in the court below, namely, the power of the
Crown to create a legislative assembly in a settled colony. Assuming,
but by no means affirming(1) that, as contended for by counsel for the
plaintiff, the colony in question, though originally conquered from
the Spaniards, is now to be deemed a settled as distinguished from a
conquered or ceded one, we consider these doubts as to the power of
the Crown and of the local legislature to be unfounded. There is even
greater reason for holding sacred the prerogative of the Crown to
constitute a local legislature in the case of a settled colony, where
the inhabitants
(1) See the judgment of Beaumont v. Barrett (1 Moo. P. C. at p. 78),
not overruled upon this point. See also 6 St. Tr. 1349; 20 St. Tr.
301.
[*19] are entitled to be governed by English law, than in that of a
conquered colony, where it is only by grace of the Crown that the
privilege of self-government is allowed, though where once allowed it
cannot be recalled. In colonies distant from the mother-country to
which writs to return members to the imperial parliament do not run,
it is essential, both for the due government of the country in dealing
with matters best understood upon the spot, and with emergencies which
do not admit of delay, and also for giving subjects there resident the
benefit of a voice, by their representatives, in the councils by which
they are taxed and governed, that the Crown should have the power of
creating a local parliament.
Accordingly, it is certain that the Crown has, in numerous instances,
granted charters under which houses of assembly and legislative
councils have been established for the government of colonies, whether
conquered or settled, and that such councils and assemblies have, from
time to time, made laws suited to the "emergencies of the colony,"
which, of course, include all measures necessary for the conservation
of peace, order, and allegiance therein. In effect, the inhabitants
have been allowed to reserve the power of self-government, through
their representatives in the colony, subject to the approval of the
Crown and the control of the imperial legislature. Beckford v. Wade
(1), in which the Limitation Act of Jamaica was held to bar the title,
and not merely the remedy, is one of many instances in which the force
of such legislation has been recognized here. And its lawfulness was
taken for granted by Lord Wensleydale, in the leading case of Kielly
v. Carson (2), in a judgment of the weightiest authority delivered
after two arguments, the second of which took place before eleven
members of the Judicial Committee, comprising, besides Lord
Wensleydale himself, Lord Lyndhurst, Lord Brougham, Lord Cottenham,
Lord Campbell, Lord Chief Justice Tindal, and Dr. Lu****ngton. In that
judgment Lord Wensleydale, after observing that Newfoundland was a
settled, not a conquered, colony, added: "To such a colony there is no
doubt that the settlers from the mother-country carried with them such
****tion of its common and statute law as was applicable to their new
situation, and also the rights and immunities of British
(1) 17 Ves. 87.
(2) 4 Moo. P. C. at p. 84.
[*20] subjects. Their descendants have, on the one hand, the same laws
and the same rights, unless they have been altered by parliament; and
on the other hand, the Crown possesses the same prerogative and the
same powers of government that it does over its other subjects; nor
has it been disputed in the argument before us, and therefore we
consider it as conceded, that the sovereign had not merely the right
of appointing such magistrates and establi****ng such cor****ations and
courts of justice as he might do by the common law at home, but also
that of creating a local legislative assembly, with authority
subordinate, indeed, to that of parliament, but supreme within the
limits of the colony for the government of its inhabitants."
This opinion was reflected upon in the argument, but it is in
accordance with just principles of government, with the law laid down
by the text-writers, including Mr. Justice Blackstone(1); and it has
now been drawn into doubt for the first time. We are satisfied that it
is sound law, and that a confirmed act of the local legislature
lawfully constituted, whether in a settled or conquered colony, has,
as to matters within its competence and the limits of its
jurisdiction, the operation and force of sovereign legislation, though
subject to be controlled by the imperial parliament.
The authorities cited for holding void certain Acts of colonial
assemblies ordering imprisonment for contempt are inapplicable, being
either cases in which there was no legislation, or cases in which the
only question was whether the local legislation fulfilled the
conditions assumed to be imposed by a governing Act of the Imperial
Parliament, and those conditions were held to have been fulfilled.
It was further argued that the Act in question was contrary to the
principles of English law, and therefore void. This is a vague
expression, and must mean either contrary to some positive law of
England, or to some principle of natural justice, the violation of
which would induce the Court to decline giving effect even to the law
of a foreign sovereign state. In the former point of view, it is clear
that the repugnancy to English law which avoids a colonial Act means
repugnancy to an imperial statute or order made by authority of such
statute applicable to the colony by express words
(1) 1 Bla. Com. 107, 108.
[*21] or necessary intendment; and that, so far as such repugnancy
extends, and no further, the colonial Act is void. The 28 & 29 Vict.
c. 63, s. 2, enacts that, "Any colonial law which is, or shall be, in
any respect repugnant to the provisions of any Act of parliament
extending to the colony to which such law may relate, or repugnant to
any order or regulation made under authority of such Act of
parliament, or having in the colony the force and effect of such Act,
shall be read subject to such Act, order, or regulation, and shall, to
the extent of such repugnancy, but not otherwise, be and remain
absolutely void and inoperative." And to remove all doubt, s. 3 of the
same Act affirmatively enacts that "No colonial law shall be, or be
deemed to have been, void or inoperative on the ground of repugnancy
to the law of England, unless the same shall be repugnant to the
provision of some such Act of parliament, order, or regulation as
aforesaid." To what Act, order, or regulation, then, is the Jamaica
Act of Indemnity and oblivion repugnant? It was argued to be repugnant
to the Governors Act, 11 & 12 Wm. 3, c. 12, by which any governor who
shall be guilty of oppressing any of Her Majesty's subjects within
this government or of any other crime or offence, may be tried and
punished by indictment before the Court of King's Bench, or a special
commission appointed by the Crown; and further remedy is provided in
such a case by 42 Geo. 3, c. 85. The argument, therefore, is, that
because the imperial legislature has provided that for oppression,
crime, or offence of a governor he shall be criminally answerable in
this country, therefore it ought to be held incompetent for the local
legislature to protect him by an Act of indemnity or oblivion against
the civil consequences of excessive zeal, however sincere, or mistaken
exertions, however honest, in the suppression of a rebellion. In
dealing with this argument, it should be borne in mind that upon an
indictment against a governor for conduct alleged to be oppressive and
criminal, cir***stances, and above all motives, may be taken into
account, which would be excluded in deciding the dry question of civil
liability; and that the proceedings upon such indictment, as in all
other criminal cases, would be subject to the control and restraint of
the Crown. Whether the assent of the Crown had, pro tanto, the effect
of an amnesty might be a point worth considering.
[*22] if necessary. Supposing that it had not, the proper course to
test the alleged criminal responsibility is not by civil action, with
a suggestion of a possible indictment, but by actual indictment
presented if the facts warrant such a proceeding. If that course
cannot be successfully resorted to, the objection of its possibility
is a phantom; and if it can, the restraint of a civil action cannot
affect its success. In this point of view, therefore, the operation of
the colonial Acts upon the present action is not "repugnant to the law
of England."
Another objection affecting the defendant personally was, that he was
a necessary party to the passing of the Act, and, therefore, could
take no benefit thereunder. This objection is founded upon a supposed
analogy between legislative and judicial proceedings. In the latter,
as a rule, the judgment of an interested judge is voidable and liable
to be set aside by prohibition, error, or appeal, as the case may be;
but it is not absolutely void, and persons acting under the authority
of such a judgment before it is set aside by competent authority would
not be liable to be treated as trespassers. This was the opinion of
the judges acted upon by the House of Lords in Dimes v. Grand Junction
Canal Co. (1); and, in case of necessity, as where all the judges of a
court having exclusive jurisdiction over the subject-matter happen to
be interested, the objection cannot prevail: (Ibid. and per Lord
Cranworth in Ranger v. Great Western Railway Co. (2)) The supposed
analogy between judicial and legislative proceedings is, moreover,
imperfect. The governor is no more a party to the colonial Act than
the Legislative Council or House of Assembly, or, in legal theory,
every inhabitant of the island represented therein. If the objection
were just in the case of a governor, then by like reasoning the Crown
could derive no benefit from any Act of Parliament; a result alike
contrary to experience and reason. The further objection to that
section of the colonial Act which empowers the governor for the time
being to decide whether any particular act falls within its provisions
does not arise. That section (which follows former precedents) does
not appear to have been acted upon, and is not founded upon in the
plea. Whether it be valid in this country may depend upon the further
question, whether it only affects
(1) 3 H. L. C. 759-786.
(2) 5 H. L. C. at p. 88.
[*23] procedure and evidence, or authorizes a judgment in rem as to
the character of particular acts.
It was further objected, that the colonial law was contrary to natural
justice, as being retrospective in its character, and taking away a
right of action once vested, and that for this reason, like a foreign
law against natural justice, it could have no extra-territorial force.
Retrospective laws are, no doubt, prim=E2 facie of questionable policy,
and contrary to the general principle that legislation by which the
conduct of mankind is to be regulated ought, when introduced for the
first time, to deal with future acts, and ought not to change the
character of past transactions carried on upon the faith of the then
existing law. "Leges et constitutiones futuris certum est dare formam
negotiis non ad facta pr=E6terita revocari; nisi nominatim et de
pr=E6terito tem****e et adhuc pendentibus negotiis cautum sit."
Accordingly, the Court will not ascribe retrospective force to new
laws affecting rights, unless by express words or necessary
implication it appears that such was the intention of the legislature.
But to affirm that it is naturally or necessarily unjust to take away
a vested right of action by act subsequent is inconsistent both with
the common law of England and the constant practice of legislation. If
(for instance from the common law) a mere stranger, acting without
authority at the time, takes upon him to do an act of trespass in the
name and for the benefit of an absent person, such professed agent
becomes liable for his unauthorized act, and a right of action is
acquired by the person against whom the wrong was committed; and yet
the general rule of the common law, borrowed from the civil law, is
that the person in whose name the act was done may, if he thinks fit,
afterwards ratify and adopt it. Such ratification has the effect of a
prior authority, and the result is, that if the prior authority of the
principal would not have justified the act, both the agent and the
principal may be sued as trespassers; and that, if such authority
would have justified the act - that is, if the principal could
lawfully have authorized it beforehand, then the agent is also
justified by matter ex post facto, and the vested right of action is
extinguished. Nor is the principle applied exclusively to private
transactions, in which, if the act be unlawful in itself, ratification
does not free the agent from responsibility. It has [*24] been equally
applied to the exercise of sovereign authority, whereby the act of the
agent, though originally unlawful, becomes by after ratification an
act of state, the original right of action is divested, and all civil
liability extinguished. A remarkable instance of this occurred in
1841, when Captain Denman, being sent by the Governor of Sierra Leone
upon an expedition to the Gallinas to recover two British subjects
supposed to be kept in slavery by a native chief, took upon him, quite
apart from the specific object of the expedition, and without orders
at the time, to liberate 300 slaves, and to destroy very large
quantities of merchandize collected in slave-dealing establishments
belonging to foreigners, who afterwards brought actions in this
country, which actions, as to the goods at least, would, but for the
course afterwards taken, have undoubtedly been maintainable. The
Queen's government, however, upon receiving the despatches, ratified
and confirmed what had been done, and that ratification was rightly
held by the Court of Exchequer, upon a trial at bar, to have the
effect of exempting Captain Denman from all responsibility.(1) The
same law had, in effect, been acted upon by Lord Stowell, in Sir Home
Popham's case, as to a blockade established without orders and
subsequently ratified: The Rolla.(2) The parties in these latter cases
were foreigners, but that cir***stance only touches the power of the
Crown, and does not affect the question under consideration, whether
it be against natural justice, which is due to all mankind alike,
native or foreign, that a right of action should be divested by
subsequent confirmation of competent authority, and it is clear that
the common law of England does not so regard it. Turning to
legislation, the same principle becomes more manifest, from the
multitude of instances in which it has been applied. The statute book
of every parliament in this century (beginning with 41 Geo. 3, c. 66,
for indemnifying against actions for the arrest of persons suspected
of treason) contains an Act or Acts of Indemnity or otherwise
retrospective by which numerous rights of action have been swept away.
One instance of retrospective legislation obviously just, to render
valid the acts of persons who had fallen honestly into error, and by
which infinite actions were killed in embryo, may suffice.
(1) 2 Ex. 167.
(2) 6 Rob. Adm. 364.
[*25] When the result of the judgment, finally affirmed by the House
of Lords, in The Queen v. Millis (1) was to declare null and void
numerous marriages celebrated in Ireland by Presbyterian ministers and
others not episcopally ordained, one effect of the decision was to
disclose, by the new light thrown upon the relations of families
previously supposed to be legitimate, a prospect of vast and
interminable litigation, springing from a host of vested rights of
action of every description. This result was averted (in so far as it
was possible without making persons liable to prosecution who were not
so liable before) by the Acts 5 & 6 Vict. c. 113, 6 & 7 Vict. c. 39,
and 7 & 8 Vict. c. 81, s. 83. By these beneficial and just statutes
the past marriages were ratified and confirmed as from the beginning,
for it was in terms enacted that they should "be adjudged and taken to
have been and to be" of the same force and effect as if canonically
had and solemnized. A more general Act was afterwards passed to render
valid certain marriages celebrated abroad, upon which doubt had been
thrown by the same decision, 12 & 13 Vict. c. 68, s. 20. Indeed, it
would fill a long chapter in history to enumerate all the instances of
retrospective legislation.
The retrospective Attainder Acts of earlier times, when the principles
of law were not so well understood or so closely regarded as in the
present day, and which are now looked upon as barbarous and loosely
spoken of as ex post facto laws, were of a substantially different
character. They did not confirm irregular acts, but voided and
punished what had been lawful when done. Mr. Justice Blackstone(2)
describes laws ex post facto of this objectionable class as those by
which "after an action indifferent in itself is committed, the
legislature then for the first time declares it to have been a crime,
and inflicts a punishment upon the person who has committed it. Here
it is impossible that the party could foresee that an action, innocent
when it was done, should be afterwards converted to guilt by a
subsequent law; he had therefore no cause to abstain from it, and all
punishment for not abstaining must of consequence be cruel and
unjust." The same distinction was elaborately pointed out in the
judgment of the supreme court of the United States, cited as
(1) 10 Cl. & F. 534.
(2) 1 Bla. Com. 46.
[*26] an authority for the plaintiff. In that case, Calder v. Bull
(1), it was held that an Act of the State of Connecticut passed to set
aside a decree of a court of probate and grant a new hearing was
valid, though the effect was ultimately to deprive the party in whose
favour the first decision was made of the benefit of the decree. The
case is chiefly valuable for the opinions expressed by the judges upon
the construction of an express prohibition in the Federal
constitution, viz., that "No state shall pass any ex post facto law."
The opinion of the Supreme Court is summarized in the following
passage of the judgment of Chase, J.(2): "Every ex post facto law must
necessarily be retrospective; but every retrospective law is not an ex
post facto law. The former only are prohibited. Every law that takes
away or impairs rights vested agreeably to existing laws is
retrospective and is generally unjust, and may be oppressive; and it
is a good general rule that a law should have no retrospect; but there
are cases in which laws may justly, and for the benefit of the
community, and also of individuals, relate to a time antecedent to
their commencement; as statutes of oblivion or of pardon. They are
certainly retrospective, and literally both concerning and after the
facts committed. But I do not consider any law ex post facto within
the prohibition that mollifies the rigour of the criminal law, but
only those that create or aggravate the crime or increase the
punishment or change the rules of evidence for the purpose of
conviction. Every law that is to have an operation before the making
thereof, or to commence at an antecedent time, as to save time from
the Statute of Limitations, or to excuse acts which were unlawful and
before committed, and the like, is retrospective. But such laws may be
proper or necessary, as the case may be. There is a great and apparent
difference between making an unlawful act lawful and the making an
innocent action criminal and puni****ng it as a crime." And he adds at
page 393: "I admit, an act unlawful in the beginning may, in some
cases, become lawful by matter of after fact." Besides this leading
case of Calder v. Bull (1), there are many decisions in the Supreme
Court upon the same subject, the result of which is that a state law
may be retrospective in its character and may divest vested rights and
yet not violate the
(1) 3 Dallas, 386.
(2) 3 Dallas, at p. 391.
[*27] constitution of the United States, unless it also impairs the
obligation of contracts, this being in terms thereby prohibited.
Charles River Bridge v. Warren Bridge (1). The authority of the
Supreme Court of the United States, so much relied upon for the
plaintiff as illustrating the general principles of law upon which the
decision of this question depends, thus turns out upon examination to
be so far favourable to the validity of the colonial Act. In fine,
allowing the general inexpediency of retrospective legislation, it
cannot be pronounced naturally or necessarily unjust. There may be
occasions and cir***stances involving the safety of the state, or even
the conduct of individual subjects, the justice of which, prospective
laws made for ordinary occasions and the usual exigencies of society
for want of prevision fail to meet, and in which the execution of the
law as it stood at the time may involve practical public inconvenience
and wrong, summum jus summa injuria. Whether the cir***stances of the
particular case are such as to call for special and exceptional remedy
is a question which must in each case involve matter of policy and
discretion fit for debate and decision in the parliament which would
have had jurisdiction to deal with the subject-matter by preliminary
legislation, and as to which a court of ordinary municipal law is not
commissioned to inquire or adjudicate.
As for the authorities referred to in illustration of this objection,
Ogden v. Folliott (2) was the case of an attainder of a royalist by
the New Jersey legislation after the declaration and before the
recognition of independence, and was decided partly on the ground that
New Jersey was not a sovereign state at the time and partly on the
ground that the penal laws of one country are not taken notice of in
another. Wolff v. Oxholm (3) was the case of an act of confiscation as
prize of a debt by a foreign government, contrary to the law of
nations. Another instance might be given of foreign law not regarded
elsewhere, viz., revenue laws, relating to the customs which, for some
reason not very obvious, have been put out of consideration except in
instances where they affect the essential form of contract. These
cases are all, for obvious reasons, exceptional.
(1) 11 Peters, 420.
(2) 3 T. R. 726.
(3) 6 M. & S. 92.
[*28] The last objection to the plea of the colonial Act was of a more
technical character; that assuming the colonial Act to be valid in
Jamaica and a defence there, it could not have the extra-territorial
effect of taking away the right of action in an English court. This
objection is founded upon a misconception of the true character of a
civil or legal obligation and the corresponding right of action. The
obligation is the principal to which a right of action in whatever
court is only an accessory, and such accessory, according to the maxim
of law, follows the principal, and must stand or fall therewith. "Qu=E6
accessorium lo*** obtinent extinguuntur *** principales res perempt=E6
sunt." A right of action, whether it arise from contract governed by
the law of the place or wrong, is equally the creature of the law of
the place and subordinate thereto. The terms of the contract or the
character of the subject-matter may shew that the parties intended
their bargain to be governed by some other law; but, prim=E2 facie, it
falls under the law of the place where it was made. And in like manner
the civil liability arising out of a wrong derives its birth from the
law of the place, and its character is determined by that law.
Therefore, an act committed abroad, if valid and unquestionable by the
law of the place, cannot, so far as civil liability is concerned, be
drawn in question elsewhere unless by force of some distinct
exceptional legislation, superadding a liability other than and
besides that incident to the act itself. In this respect no sound
distinction can be suggested between the civil liability in respect of
a contract governed by the law of the place and a wrong.
Our courts are said to be more open to admit actions founded upon
foreign transactions than those of any other European country; but
there are restrictions in respect of locality which exclude some
foreign causes of action altogether, namely, those which would be
local if they arose in England, such as trespass to land: Doulson v.
Matthews (1), and even with respect to those not falling within that
description our courts do not undertake universal jurisdiction. As a
general rule, in order to found a suit in England for a wrong alleged
to have been committed abroad, two conditions must be fulfilled.
First, the wrong must be of such a character that it would have been
actionable if committed
(1) 4 T. R. 503.
[*29] in England; therefore, in The Halley (1), the Judicial Committee
pronounced against a suit in the Admiralty founded upon a liability by
the law of Belgium for collision caused by the act of a pilot whom the
****powner was compelled by that law to employ, and for whom,
therefore, as not being his agent, he was not responsible by English
law. Secondly, the act must not have been justifiable by the law of
the place where it was done. Therefore in Blad's Case (2), and Blad v.
Bamfield (3), Lord Nottingham held that a seizure in Iceland,
authorized by the Danish Government and valid by the law of the place,
could not be questioned by civil action in England, although the
plaintiff, an Englishman, insisted that the seizure was in violation
of a treaty between this country and Denmark - a matter proper for
remonstrance, not litigation. And in Dobree v. Napier (4) Admiral
Napier having, when in the service of the Queen of ****tugal, captured
in ****tuguese water an English ****p breaking blockade, was held by the
Court of Common Pleas to be justified, by the law of ****tugal and of
nations, though his serving under a foreign prince was contrary to
English law, and subjected him to penalties under the Foreign
Enlistment Act. And in Reg. v. Lesley (5), an imprisonment in Chili on
board a British ****p lawful there, was held by Erle, C.J., and the
Court for Crown Cases Reserved, to be no ground for an indictment
here, there being no independent law of this country making the act
wrongful or criminal. As to foreign laws affecting the liability of
parties in respect of bygone transactions, the law is clear that, if
the foreign law touches only the remedy or procedure for enforcing the
obligation, as in the case of an ordinary statute of limitations, such
law is no bar to an action in this country; but if the foreign law
extinguishes the right it is a bar in this country equally as if the
extinguishment had been by a release of the party, or an act of our
own legislature. This distinction is well illustrated on the one hand
by Huber v. Steiner (6), where the French law of five years'
prescription was held by the Court of Common Pleas to be no answer in
this country to an action upon a French promissory note,
(1) Law Rep. 2 P. C. 193.
(2) 3 Swan. 603.
(3) 3 Swan. 604.
(4) 2 Bing. N. C. 781.
(5) Bell, C. C. 220; 29 L. J. (M.C.) 97.
(6) 2 Bing. N. C. 202.
[*30] because that law dealt only with procedure, and the time and
manner of suit (tempus et modum actionis instituend=E6), and did not
affect to destroy the obligation of the contract (valorem contractus);
and on the other hand by Potter v. Brown (1), where the drawer of a
bill at Baltimore upon England was held discharged from his liability
for the non-acceptance of the bill here by a certificate in
bankruptcy, under the law of the United States of America, the Court
of Queen's Bench adopting the general rule laid down by Lord Mansfield
in Ballantine v. Golding (2), and ever since recognized that "what is
a discharge of a debt in the country where it is contracted is a
discharge of it everywhere." So that where an obligation by contract
to pay a debt or damages is discharged and avoided by the law of the
place where it was made, the accessory right of action in every court
open to the creditor unquestionably falls to the ground. And by strict
parity of reasoning, where an obligation, ex delicto, to pay damages
is discharged and avoided by the law of the country where it was made,
the accessory right of action is in like manner discharged and
avoided. Cases may possibly arise in which distinct and independent
rights or liabilities or defences are created by positive and specific
laws of this country in respect of foreign transactions; but there is
no such law (unless it be the Governors Act already discussed and
disposed of) applicable to the present case.
It may be proper to remark, before quitting this part of the subject,
that the colonial Act could not be overruled upon either of these two
latter grounds of objection without laying down that no foreign
legislation could avail to take away civil liability here in respect
of acts done abroad; so that, for instance, if a foreign country after
a rebellion or civil war were to pass a general Act of oblivion and
indemnity, burying in one grave all legal memory alike of the
hostilities, and even the private retaliations which are the sure
results of anarchy and violence, it would, if the argument for the
plaintiff prevailed, be competent for a municipal court of any other
country to condemn and disregard, as naturally unjust or technically
ineffectual, the law of a sovereign state, disposing, upon the same
constitutional principles as have actuated
(1) 5 East, 124.
(2) Cooke's Bankrupt Law, 487.
[*31] our own legislature, of matters arising within its territory - a
course which to adopt would be an unprecedented and mischievous
violation of the comity of nations.
We have thus discussed the validity of the defence upon the only
question argued by counsel, touching the effect of the colonial Act,
but we are not to be understood as thereby intimating any opinion that
the plea might not be sustained upon more general grounds as shewing
that the acts complained of were incident to the enforcement of
martial law. It is, however, unnecessary to discuss this further
question, because we are of opinion with the Court below that the
colonial Act of Indemnity, even upon the assumption that the acts
complained of were originally actionable, furnishes an answer to the
action.
The judgment of the Court of Queen's Bench for the defendant was
right, and is affirmed.
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