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at the close of a war, as to which there never was really any doubt that the Crown could do so by virtue of its prerogative. They do not touch the question of whether the Crown has the power where there has been. no war, and consequently no treaty of peace.
It has, I believe, been supposed that a distinction exists between territory acquired by the Crown by conquest or cession which has not been tho subject of Parliamentary legislation, and territory to which Acts of Parliament have been applied, and it has been thought that the Crown may by its prerogative cede the former but not the latter to a foreign power
In 1853, a question arose as to the abandonment by the Crown of its sovereignty over the Orange River Territory, which had been assumed by proclamation of the Governor, and under the public seal of the colony of Cape of Good Hope, in 1848. By letters patent under the great seal, dated March 1851, Her Majesty ordained and appointed that the said territory should become and be constituted a distinct government to be administered by the Governor of the Cape, and that it should thenceforth be known by the name of the Orange River Territory. In 1854, the Duke of Newcastle, who was then Secretary for tho Colonies, wrote to Sir George Clerk, the Governor of the Cape, and informed him that Her Majesty's Government had come to the conclusion, that the abandonment of the Orange River sovereignty could be legally and most conveniently effected by an Order in Council and proclamation. The letters patent of March 1851 were accordingly revoked by other letters patent, and the Queen, by Order in Council, dated January 30, 1854, approved of a proclamation, whereby Her Majesty did "declare and make known the abandonment and renunciation of our dominion and sovereignty over the said territory and the inhabitants thereof:" see Correspondence on the State of the Orange River Territory, presented to Parliament, April 10, 1854.
There are two instances of cession (independently of treaty at the conclusion of a war) by the East India Company to a foreign state previously to the Indian mutiny :—
1. In 1817, a cession by treaty, "in full sovereignty," to the Sikhimputtee Rajah of a part of territory formerly possessed by the Rajah of Nepaul.but taken by the East India Company, and ceded to them by a treaty of peace.
2. In 1833, a cession by treaty to Rajah Voorunder Singh of a portion of Assam, lying on the south of the Burrampooter River, by which the Kajah bound himself, "in the administration of justice in the country now made over to him, to abstain from the practices of the former rajahs of Assam, as to cutting off ears and noses, extracting eyes, or otherwise mutilating or torturing:" Treaties, Engagements, and Sunnuds, vol. i. p. 132.
This is not a very satisfactory precedent, and it shows the kind of risks to which British subjects might be liable in being transferred to a semi-barbarous power. But I may add that in that case the Rajah agreed to pay a large annual tribute, so that he became a sort of feudatory of tho Company. Since the mutiny there have been several instances of cession of territory in India by grants, as rewards to native chiefs for fidelity to the British Government. And as to these it may be said that Indian necessities are peculiar, and cannot be judged of by European precedents. It is not, as generally with us, a foreign enemy, but it is the hostility and disaffection of the native population, a population enormously outnumbering the English, which may produce dangers quite as imminent and urgent, during apparent peace, as a foreign European war, and it may be urged that European precedents cannot be strictly applied to a state of things wholly different. It is right also to mention that boundary treaties have been made by the Crown without the authority of Parliament, and those treaties have in effect altered the nationality of territory to a certain extent, as in the case of the Washington Treaty in 1842, and the Oregon Treaty in 1846.
If cessions of territory by mere grant are valid, what becomes of the allegiance of the inhabitants? The rule of Roman law is thus stated by Cicero: ''Jure enitn nostro neque mutare civitatem quisquam inritus potest, ncque si velit, mutare non pr,test, modo adsciscatur ab ea civitate, cujus esse se civitatis velit:" pro Balbo, 11. It seems to be clear that the Crown cannot by its prerogative alone release subjects from their allegiance, nor e converso deprive them of the rights of British subjects. In the despatch of the Duko of Newcastle to which I have already referred, his Grace said: "W ith respect to the allegiance of the inhabitants who may have been born in British dominions either within or without the sovereignty, there is, I believe, little doubt that no measure resting on the Queen's prerogative only for its authority, could releaso them from the tie of such native allegiance. An Act of Parliament would bo required for such a purpose. But, for the reasons already adverted to in my despatch of November 14 last, I do not consider it necessary to apply to Parliament on this ground. It is probable that the inhabitants of the future commonwealth would generally prefer to retain the rights of British subjects rather than become wholly aliens, and subject to the ordinary incapacity of aliens within Her Majesty's dominions." This part of the subject, however, will be more fully considered in the chapter on Allegiance, post.
"It is a settled constitutional principle or rule of law, that although
of Courts of the Crown may, by its prerogative, establish courts to proceed accord
ing to the common law, yet it cannot create any new court to administer any other law; and it is laid down by Lord Coke, in the 4th Institute, that the erection of a new court with a new jurisdiction cannot bo without an Act of Parliament:" In re Lord Bishop of Natal, 3 Moore, P. C. (N. S.) 152. The Crown, by its prerogative, may make what courts for the administration of the common law, and in what places, it pleases: Com. Dig. Prerog. D. 28. But the Crown cannot erect a Court of Chancery or Conscience, for the common law is the inheritance of the subject: Ibid. The erection of a new court with a new jurisdiction cannot be without an Act of Parliament: 4 Inst. 200. The Crown cannot grant to a court that it may proceed according to the civil law: 2 Rush. App. 77; nor can it by charter or commission alter the common law: Ibid. The Crown cannot give any addition of jurisdiction to an ancient court, and hence the Court of Queen's Bench could not, by virtue of the prerogative alone, have been authorized to determine a mere real action between subject and subject; " so neither can the Court of Common Pleas, to inquire of treason or felony:" Bacon's Abr. Courts.
It is usual when courts of justice are established in the foreign possessions of the Crown to obtain the authority of an Act of Parliament empowering the Crown to establish them by letters patent or charter. George II., by letters patent dated January 18, 1753, granted to the East India Company his royal charter constituting and establishing courts of civil, criminal, and ecclesiastical jurisdiction at Bombay and Calcutta (i); but afterwards, in 1773, by statute 13 Geo. 3, c. 63, s. 13, it was enacted that it might be lawful for the Crown, by charter or letters patent under the great seal, to erect a Supremo Court of Judicature at Fort William (Calcutta), with power and authority to exercise civil, criminal, admiralty, and ecclesiastical jurisdiction. A charter was accordingly granted by the Crown, dated March 26, 1774, whereby a Supreme Court of Judicature was established at Fort William. In 1800, by statute 39 & 40 Geo. 3, c. 79, the Crown was similarly empowered to erect a Supreme Court of Judicature at Madras, under which a charter was granted for that purpose, dated December 26, 1800. And in 1823, by statute 4 Geo. 4, c. 71, the Crown was similarly empowered to erect a Supreme Court of Judicature at Bombay, under which a charter was granted, bearing date December 8, 1823. In 1861 an Act was passed, 24 & 25 Vict. c. 104, empowering the Crown, by letters patent under the great seal, to erect High Courts of Judicature at Fort William, Madras, and Bombay, and also in any portion of the territories within Her Majesty's dominions in India not included within the limits of the local jurisdiction of another nigh Court. Under this Act letters patent were granted, bearing date respectively, December 28, 18(55, by which High Courts were established at Fort William, Madras, and Bombay; and by other letters patent, dated March 17, 1866, a High Court was established for the Northwestern Provinces of the Presidency of Fort William.
The County Courts were established by statute 9 & 10 Vict. c. 95, and were thereby made courts of record, but their proceedings diffor from those of the courts of common law: Breese v. Owens, 6 Ex. 419. Courts of quarter sessions are courts of oyer and terminer, and not inferior courts: Campbell v. The Queen, 11 Q. B. 841 ; B. v. Smith, 8 B. & C. 342-3.
Although it is not strictly relevant to the subject of this note, I may quote a useful dictum of Lord Abinger, C.B., in Jewison v. Dyson, 9 M. & W. 586, that "every person who administers a public duty has a right to preserve order in the place where it is administered, and to turn out any person who is found there for improper purposes."
(i) There was an older charter, in 172G, constituting Mayors' Courts at Calcutta, Madras, and Bombay; but this charter was surrendered, and a fresh charter granted in 1753, reconstituting the Mayors' Courts.
(1.) Joint Opinion of the Attorney and Solicitor General, Sir Robert Henley and Hon. Charles Yorke, as to how far the proclamation of Martial Law suspends the functions of the Council. 1757.
To the Right Honourable the Lords Commissioners for Trade and
May It Please Your Lordships,—In pursuance of your Lordships' commands, signified to us by Mr. Pownall, in his letter of the 22nd instant, acquainting us that your Lordships had received two letters from Henry Moore, Esq., Lieutenant-Governor of Jamaica, informing your Lordships that he had, in consequence of advices which he had received of an intended invasion of that island, caused martial law to be proclaimed; and that his Majesty's Council, upon being summoned to meet in their legislative capacity, had refused to do any business, alleging that neither they nor the Assembly had any right to sit or transact business after the publication of martial law; and also transmitting to us copies of the LieutenantGovernor's letters and two other papers, containing the reasons assigned by the Council for their opinion, and their answers to several questions propounded to them by the Lieutenant-Governor, and desiring us to take the same into our consideration, and report to your Lordships our opinion thereon: we have taken the same into our consideration, and are of opinion that there is no foundation for the notion of the Council, that the proclaiming of martial law suspends the execution of the legislative authority, which may and ought to continue to act as long as the public exigencies require.
Nor do we apprehend that by such proclamation of martial law, the ordinary course of law and justice is suspended or stopped, any further than is absolutely necessary to answer the then military service of the public and the exigencies of the province.
Robt. Henley. January 28, 1757. C. Yorke.
(2.) Opinion of Mr. Harghave on an Irish ease involving the question of Martial Law (i).
I have perused the several papers laid before me in the case of the high treason attainder of Mr. Cornelius Grogan after his death, by the Irish Act of October 6, 1798, which included Lord Edward Fitzgerald and Mr. Beauchamp Bagnel Harvey.
But previously to attempting the draft of a reversal bill, it is necessary that it should be fixed upon what principle the bill should be framed.
There are two ways of putting the case in the proposed bill of reversal.
One is, representing that Mr. Cornelius Grogan was under compulsion from the rebels, and so was free from all crime; and that the Irish Parliament was in great measure misled into a supposition of his guilt by his having been put to death on the judgment of a court of officers acting under what was conceived to be martial law. Looking to the case in this point of view, the minutes of the evidence before the Committee of the House of Commons in Ireland, appear to me to present a very strong case in favour of considering Mr. Cornelius Grogan as having acted under compulsion. I am impressed also that his having been tried and put to death, under a proceeding called martial law, so far from being ground for inducing an Act for attainting him after his death, should have operated in preventing such an extraordinary rigour. I so express myself because that extremity was resorted to against him previously to the Irish statute, made in the 39th of his present Majesty, for suppression of the rebellion in Ireland; and so, as I conceive, was applied when the doctrine, attributing to the Crown in time of rebellion a prerogative right of authorizing the trial of arrested rebels before a court-martial and by martial law, and the punish(i) Jurisconsult Exercitations, i. 401.