culty in compounding the two laws. It is supposed to be a part of the customs of China to expose infants. It would be difficult prima facie to say that was murder in them, and yet that is malum ix se; it is as much malum in se as any thing can be supposed to be. Mr. Nolan-Your lordships observe that the position in 2 P, Williains says, the laws of this country shall prevail where those of the conquered country are either contrary to the laws of God, or are totally silent. Lord Ellenborough, My difficulty is about these exceptions; "fundamental principles," and "mala in se" introduce some difficulty. Mr. Nolan. There is undoubtedly a difficulty of drawing the precise line, but so there is in all human matters, and this duty must be reposed in judicial discretion. ed upon principle and resorted to in practice in all times since a law of nations was known or practised. A further difficulty presents itself as I proceed. What persons are they who are to administer the ancient law in such cases? Is it the conquerors who know nothing about it, or are the conquered to take the conquerors under their civil dominion by the administration of those laws, of the operation and extent of which their vanquishers are ignorant? When these and other circumstances are balanced and considered, it is more strictly conformable to principle to go beyond the rule for which I contend and, say that the old law ceased altogether upon the conquest, and that the vanquished, as they became subjects of the crown, became answerable to its laws as well as to its govern by virtue of the king's prerogative, restrained and limited as that prerogative is by the constitution for the nation's good. Lord Ellenborough.-There is some theo retical inconvenience; there is very little practical inconvenience, whether the form of the government runs in the name of his ma jesty, or of the king of Spain. -- Mr. Nolan. My lords; the mischiefs and grievous consequences I have pointed out, are not merely theoretical. Conquerors can lose no privilege, as the direct result of their con quest; but to subject them to strange laws, of which they have never heard, is to deprive them of their rights, and strip them of their privileges. Lord Ellenborough.-The conquerors individually lose no privilege. But if they choose to go abroad into a Spanish colony where a different form of law prevails, they must abide by the consequences. You must either admit that the old laws continue till the new are in. troduced, or they must be positively in a law. less state. Lord Ellenborough.-All difficulty in draw-ment, except so far as they are actually altered ing the line is avoided if, in conformity to the 5th resolution in Campbell and Hall, you say, "That the laws of a conquered country continue in force until they are altered by the conqueror." That leaves no uncertainty or difficulty, as the colony is to remain as itwas before. Mr. Nolan. My lord, with all deference the uncertainty and difficulty will then be greater. It is agreed, that the practical forms of the old law, including such as affect local property, may be revived or continued, as they were in this instance by the commander-inchief. The general ordinances of law, as a rule of civil conduct, are in most civilized countries the same in their practical result. The absurd and wicked anomalies against which our constitution wages war, are usually few, and may be removed as speedily and easily by the conqueror, as they might and ought to have been by the ancient government. Here is little difficulty, small novelty, and less hardship; but will your lordships indulge me in putting some cases, to show the mischiefs which must arise from the other alternative? Suppose an Englishman who thinks he has rather too numerous a family, and chooses to put a few of them to death, or considers it right to marry seven or eight wives; is that to be permitted, because the original laws of Ceylon or China allowed their subjects to act so? We may get rid of most of the difficulties in practice with regard to the conquered subjects, by the mercy and humanity of the crown; which can mitigate the rigors of our law whenever sound discretion requires it, But if the laws of the conquered country remain in force, their binding obligation is general, and applies to English as well as natives. The conquerors are to become subject to every municipal regulation, whether virtuous or wicked, expedient or impolitic, whether criminal or civil, whether they respect marriage, religion, or any other right connected with our civil relations and liberties. Surely then the mischief is greater by adopt ing the laws of the conquered country, without qualification, even than by admitting those of theconquerors,and followingthe old rule found VOL. XXX. Mr. Nolan. I do not think so. The sum of my argument is this. According to the law of nations the civil rights of the conquered cease altogether by the conquest, unless preserved by stipulation. Their old laws must therefore be put into re-operation by the will of the conqueror either express or implied. Our constitution vests this power in the king, and his majesty may entrust this authority to the commander of his forces, until his royal pleasure is definitively known: or the old laws may revive by the self-action of our own laws and constitution, subject to those regulations and restrictions which are laid down in our books. But whether the laws of the conquered are continued or mo dified by the sovereign's will, and whether that will is expressly or impliedly declared, it is clear that no greater power can be given by the crown than the crown has to bestow; and that his majesty cannot, by his individual authority, continue institutions which he could not, by his prerogative originate in the code of a new colony. If it be clear, then, that the 3 P king can neither by commission nor charter, My lords; I shall not trouble your lordships with any observations on the peine fort et dure, because it does not apply to this case. Neither shall I make any upon the countess of Shrewsbury's case, 12 Rep., 94. That case came before the council. It concludes significantly with this observation : "Hoc in terrorem, sed quære quid inde venit," &c. It was rather a political thing to frighten her, than a sound and serious resolution. the executive government; for it does not appear, that the court of the Caraccas had any executive power over the island of Trinidad. It is, indeed, an act of the executive power to determine whether a sentence shall be carried into execution or not; but the confirmation or rejection of the sentence is a judicial act. And the court of the Caraccas was only a forum of appeal, to reverse or confirm the sentence pronounced in the island of Trinidad, which was, in that respect, a subordinate jurisdiction. But the point is now given up by my learned friend. He puts his case upon its being a judicial, and not an executive My learned friend has said, that general Picton acted either as alcalde or governor, and either the alcalde or the governor, or both together, had power to inflict torture, which is an answer to this indictment. That if the alcalde had the power, he only asked the advice of general Picton, which is something like the constitutiones imperatoriae, answers of the prince. It was his advice, and not his authoritative act. Protesting against this supposed analogy, I have to observe, that to this argument there are two decisive answers. In the first place, the special verdict finds it was not done by the authority of the alcalde, but by the authority of general Picton. In the next place, it is found that the alcalde had no power to order the torture of his own authority. The next mode in which my friend put his case is, that there was an appellate power given by general sir R. Abercrombie in his instructions, and under that appellate power this act was done. Now, my lords, to that there are answers just as decisive. In the first place, that appellate power was not given from the court of the alcalde, but from a court erected by general Abercrombie himself, namely, the court of the chief justice; therefore, even supposing that the power of the chief justice was not afterwards to a certain degree put away by his majesty's instructions, no jurisdiction was thereby vested in general Picton over the alcalde's court. The authority given by the crown must be strictly observed. But so far is that rule from being followed here, that the case was before the alcalde instead of the chief justice, from whose tribunal alone general Picton possessed an appellate jurisdiction; and it is impossible to contend that the right of My friend's next proposition is, that the infliction of torture was a judicial proceeding founded on the sentence of a court having competent jurisdiction over the cause; and that the judicial character of the act, done in the capacity of a judge, constituted a justification for doing it. This raises the question whether general Picton had any authority as a judge to do the act. My lords, the terms in which Mr. Stephen has put his proposition have relieved me from arguing a point on which the Court appeared to feel some little doubt, namely, whether it could be supposed that this order was given by general Picton as an executive magistrate. From the time when the case was first brought before this Court, until the moment when the doubt was suggested, it was always understood to be general Pic-appeal over one court gave him jurisdiction ton's act, as a judge, and not as the head of the executive government. If there could be any doubt upon that point, it must be removed by looking into the special verdict. In the first place, the tribunal is stated in the special verdict, to be a tribunal of appeal. In the next place, the special verdict sets forth, that no sentence could be put in exccution until it was submitted to the court of appeal in the Caraccas, for approval or rejection, so that the words of the special verdict leave no doubt, that this order was not the act of over another, which was altogether different. Besides it can admit of no possible doubt that general Abercrombie had no power to erect or constitute any court, with authority to try the king's people, after his majesty's pleasure was made known. Therefore, even if I were to go the length of supposing that this case was brought into the court from which general Picton would, under general Abercrombie's instructions, have a right to entertain an appeal, and that general Picton did entertain the question in his appellate capacity, yet stil it never was supposed that the commission | the king's commission; and that is really the of a commander in chief gave him power sole point worthy of discussion on this part of to erect tribunals and courts of justice, which the case. were to continue by virtue of that commis- to your lordships what the terms of that It may be necessary just to state sion, after his majesty, by means of his great commission are. The first material part of the officers of state, had sent out his commission commission is article 5. "It is our will and and instructions for the governor of the coun- "pleasure that, for the present, the temporary try, and ordained regulations inconsistent with "administration of the island should, as those given by the commander in chief." nearly as circumstances will permit, be exPerhaps up to that period, any regulations" ercised by you according to the terms of of the commander in chief might continue; "the capitulation hereunto annexed, in conbut no further. There is a case on record "formity to the ancient laws and institutions which shows, that a commander having mi- "that subsisted within the same previous to litary power over life and death, has no power “the surrender of the said island to us, subof this kind. "ject to such direction as you shall now and Mr.Justice Bayley.-After the conquest,could "hereafter receive from us under our signet corporal punishment be inflicted in any case? "or sign manual, or by our order in our Mr. Nolan.-Undoubtedly it could. Martial" privy council, or to such sudden and unlaw exists from the very moment of the con- "foreseen emergencies as may render a dequest; it continues until the conqueror pro- "parture therefrom absolutely necessary and claims some other rule for the civil regulation" unavoidable, and which you are immediately of the island, or until his majesty's pleasure is" to represent to one of our principal secreknown. "taries of state for our information. But it " is nevertheless our special command, that "all the powers of the executive government within the said island, as well civil as military, shall be vested in you our governor, or "in the person having the government of the "said island for the time being; and that "such powers as were heretofore exercised by Lord Ellenborough. That is a regulation by " any person or persons separately, or in constatute, the promulgation of martial law" junction with the governor of the said having the effect of producing the suspension" island, shall belong solely to you our goof the ordinary municipal laws. vernor, or to the person having the govern"vernment of the said island for the time being, &c."* My lords, such was the usage in this country during different great struggles and distorbances. After martial law was proclaimed," your lordships' jurisdiction ceased. It was the case also, not long ago, in Ireland; on the proclamation of martial law, the common law was no longer in force. 66 Mr. Nolan.--Undoubtedly, that was the case in Ireland. But speaking from recollec-" tion, there are many instances in our books Now, my lords, in the first place, it is found where persons have been tried by martial law, that in the capitulation there was no proviwhen it existed in this country, as proclaimed sion for the continuance of the laws. My by the king'sauthority, and not by any statute. proposition therefore is, that this article apYou will find in lord Hale a great deal on plies only to the executive and not to the that subject. I wish anxiously to avoid dis-judicial power or authority. What then is cussing the right of granting the power of meant by these words, "The temporary adcivil regulation, as assumed by general sir R."ministration of the island shall be exercised Abercrombie, between the conquest and the by you, according to the terms of the capitutime when his majesty's pleasure was known. lation?" Why, that you are to refer to No power could be more discreetly or better the terms of the capitulation for the exercise exercised than it was by that distinguished of the rights which are stated in the capitulaofficer. But supposing sir R. Abercrombie to tion itself, in which the laws are not included. have had the power which he assumed, general Picton did not conform to it. And further, Mr. Justice Bayley.-Will you have the whatever power was vested in general sir R. goodness to read the 7th article? Abercrombie, as it originated either in Mr. Nolan. My lord, I am perfectly aware the express words of his commission, or was of the 7th article, and I will do that by-and-by. thereby permitted from the necessity of his "It is our command that all the powers of situation, it continued no longer than" the executive government within the said until his majesty had indicated his pleasure" island, as well civil as military, shall be as to what the regulations and government" vested in you our governor," &c. This 5th of that country should be. I therefore take it to be clear, that there is no ground for saying that general Picton derived any authority from general Abercrombie to do what is now complained of. On the contrary, he did it of himself, unauthorized by any instructions from his superior. My lords, the next question is, whether general Picton had power to do this act under article, therefore, relates solely to the executive power, to which the terms of capitulation were intended to be altogether confined. My learned friend Mr. Stephen says, that your lordships ought to give this article as liberal an interpretation as possible. Surely this is the first time that such a proposition was ever • Vide antè, p. 500. heard of in a court of justice. I have always understood that, with regard to power assumed by one subject over others, the right was to be construed as strictly as possible, instead of liberally. It admits of no such thing as a favourable interpretation when authority is exercised by one subject over his equals. But if the rule was more relaxed, still no such liberal construction is admissible, as that the 5th clause, which refers only to the case of the executive government, should be extended to the administration of justice. I come now to the 7th article, which relates to the mode of administering justice in the island. His majesty's instructions contain his sovereign pleasure on that point, and unavoidably supersede all such as were given by the commander in chief previous to that time. "It is our will and pleasure, that, for the present, and until our farther pleasure shall "be signified, the same courts of judicature, "which subsisted in the said island previous "to the surrender thereof to us, shall, for the 36 present, be continued in the exercise of all the judicial powers belonging to them in "civil and criminal cases; and that they "shall proceed according to the laws by "which the said island was then governed; "and that such judicial powers as previous "to the surrender of the said island to us were exercised by the Spanish governor, "shall be exercised by you our governor, in "like manner as the same were exercised "previous to the surrender of that island." Mr. Justice Bayley-Now I ask you upon that, could there be any case in which corporal punishment could be inflicted for crimes? Mr. Nolan.-I think there could. doubtedly, then the express language of this article gives no greater power. Let me suppose, therefore, that the alcalde had the power of inflicting punishments of all sorts, previous to the surrender of the island; and that general Picton had, subsequently to the king's commission, thought proper to interpose an appellate jurisdiction; surely he could not justify himself under the authority of this article. It gave him no power to interfere with the alcalde. The meaning of the clause being, that he was thereby put precisely in the same situation in which Spanish governors stood previous to the conquest; who, if they had done any thing like what general Picton has done, would have acted contrary to law, and must have resorted to the mercy of their sovereign for pardon. If I am correct in these positions, the point is reduced to the question, whether any necessity, arising from the situation of the colony, could have justified the governor in assuming this power. This involves the consideration of Mr. Justice Bayley's observation, that, unless the governor had such power, it would be impossible to inflict any corporal punishment in the island. Before I examine this argument ab inconvenienti, it will be proper to discuss the principle upon which this supposed justification rests. This was put by my learned friend with great ability. He seemed to argue thus: I admit that, considered per se, no such power is given to general Picton by the instructions from the crown; but it is a casus omissus, and being so, the instructions of general Abercrombie upon this head are not repealed. Now, I take it to be clear, as I have more than once observed, that where the sovereign Mr. Justice Bayley. It is stated in the indicates what his will and pleasure is, all the special verdict, that where any sentence authority that was possessed prior to that was pronounced by any of the courts in time, under the instructions of the commanderTrinidad, by which a party was to suffer cor-in-chief, ceases. There is no principle upon poral punishment, such sentence could not be carried into execution till it was transmitted to the superior forum of Caraccas for its confirmation or rejection. which powers given antecedent to the royal commission, are by implication to be annulled in part, and continued for the residue. But it is urged, that no punishment could be inMr. Nolan. I do not mean, my lords, to flicted for the want of the appellate jurisdicleave that part of the case untouched. I am tion of the Caraccas, which could alone sancsorry to have troubled you so long. Let us tion it in the event of an appeal, and therereturn to this article, which sets up all the fore that general Picton must have this power authorities that existed in the island previous as essentially necessary to the preservation of to its surrender to his majesty's arms, but social order, and the maintenance of public sets up none other, and à fortiori none greater good. Now I can venture to assert with dethan those which then existed.-The Eng-ference, but still with some confidence, that lish governor, therefore, possessed no more there is no case to be found in our books which authority under that article, than the Spanish warrants such a monstrous proposition, as governor did previous to the conquest. It is, that power is given to one subject over another, indeed, specially found, that the latter had upon the principle that it ought to have been not any paramount jurisdiction in respect of conferred by the crown, but has been acciwhich he could have taken cognizance of dentally omitted in the royal grant. Who is to cases of this sort, for it is found that he had judge of this necessity? or which of the king's no controlling power over the original tribu- subjects is to arrogate this dominion over his nals of the island, and that the three jurisdic- fellow-subjects who, in contemplation of law, tions were co-equal; none of them having a are all equal, without a clear delegation of the right to interfere with the other, the only ap-right by some legal manifestation of the royal peal being to the court of Caraccas. Un- pleasure? But if the principle were as much applies it. The question here put is, whether a person who ex concessis has no jurisdiction, and in fact assumes the character of a judge, for the purpose of trying an offence, is to derive security and protection from such an assumption of lawless power by the very act which constitutes his criminality. Omitting, therefore, such arguments as these, the court must look at the true question, which is, whether general Picton had an authority for what he has done by virtue of the king's commission. If he had no authority thereby given him to act as a judge of appeal, he is undoubtedly answerable for his illegal assumption of power, and answerable in this Court. My lords, I will not go into the discussion of any observations about the expedience, or inexpedience of making the defendant answerable in this country. I will content myself with citing the words of lord Mansfield in the case of Mostyn and Fabrigas.* "He is accountable in this court, or he is ac against as it is for me, I should state, that the necessity which is supposed to justify such a usurpation, did not exist in fact. The only difficulty pretended is, that there must be a postponement of punishment, until the king's pleasure is known,-until a new commission or particular instructions are sent from Eng. land. In the mean time, the defendant would be kept in gaol, instead of undergoing immediately either death or some other punishment commensurate with his crime. Such procrastination of punishment was even greater under the ancient government where an appeal was allowed, first to the audience of the Caraccas, and ultimately to the Spanish king in council. If the old law was to be followed as closely as possible; these impediments to speedy justice were to be favored and not removed. But admitting this delay to be a mischief, and a considerable one, is it not less injurious to the king's people, than a manifest violation of the law, in a tyrannous assumption of power? I denounce" countable no where, for the king in council it as such, because, I believe in my con- "has no jurisdiction." "Therefore to lay science, this is the first time that any effort" down in an English court of justice such has been made in this free country, to ground upon this plea of tyrants a defence for such outrageous conduct. Let me suppose, that in consequence of some grievous" treason, it is necessary to try some offenders by special commission, or that such violations of the public peace, in murders and" robberies had occurred, as made a speedy con viction and execution of the offenders not only salutary but essential to the public good; or that under a military commission, it was necessary that the general should be intrusted with extraordinary powers-would the most imminent necessity, the most manifest peril and jeopardy to the salus publica authorize any of the learned judges or any commander, either civilor military, to assume such authority, or could it amount to any thing in the nature of a legal excuse, unless the power was expressly given by commission from the crown? My lords, I do state, that having looked anxiously into many books to see whether necessity could authorize any person to act in such a case, although under the influence of the purest intentions, there is no authority or usage which warrants such an assumption;" within their respective governments or and practice is in every respect against it. 66 a monstrous proposition, as that a governor, "acting by virtue of letters patent under the great seal, is accountable only to God and his own conscience; that he is absolutely despotic, and can spoil, plunder, and injure "his majesty's subjects both in their liberty and property with impunity, is a doctrine "that cannot be maintained." c My lords, with this observation I should close this tedious case, in which I have been compelled to many repetitions, by the time that has elapsed between its several stages, and the change of members which has occurred in this court. But my learned friend has adverted to the 11th and 12th of William 3rd and to the 42 Gen. Srd, c. 85, and his observations deserve some answer. The 11th and 12th William 3rd, intituled" An Act to punish governors of Plantations in this kingdom for crimes by them committed in the Plantations" is as follows: "Be it enacted &c. that if any Governor "&c. within his majesty's dominions beyond "the seas, shall be guilty of oppressing any "of his majesty's subjects beyond the seas "commands, or shall be guilty of any other The third and remaining proposition of my "crime or offence contrary to the laws of learned friend is, that the defendant having "this realm, or in force within their respective acted without malice, the judicial character of governments or commands, such oppresthe act is a decisive answer to the indictment; "sions, crimes and offences shall be inand that, whether the proceedings were regu- "quired of, heard, and determined in his lar or not: or in other words, that the judicial" majesty's court of King's-bench here in Engcharacter of the act exempts the person acting" land," &c. as a judge from all penal consequences, merely because he took it upon himself, and without other authority than his own free-will assumed the judicial functions. To state the position is, in my humble judgment, to refute it. I am not speaking of cases where the judge, having a clear jurisdiction over the matter tried, either mistakes the law or mis Surely this is a strong legislative declaration and exposition, that every governor of our colonial dominions is bound to conform himself to the law of this country in the administration of his government, and that if guilty of any oppressions, crimes, or offences * Cowp. 175. |