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CHAPTER XI.

ON APPEALS FROM THE COLONIES.

(1.) CASE and OPINION of the Attorney General, SIR EDWARD NORTHEY, on the right of Appeal from the Colonial Courts. 1713.

SIR,- By order of the Lords Commissioners for Trade and Plantations, I send you the enclosed extract of a letter from Mr. Lowther, Governor of Barbadoes, upon consideration whereof their Lordships desire your opinion, as soon as may be, upon this following quære, viz. :

Quære. Whether an appeal can, or ought to be brought, from the Court of Exchequer in Barbadoes to the Governor and Council there, as a Court of Chancery?

WM. POPPLE.

Opinion. I am of opinion the Governor, by virtue of his instructions, is to admit appeals as well from the Court of Exchequer as from other Courts in the island of Barbadoes to the Governor and Council there, and this plainly was the intent of the Governor's instructions, no appeal being directed to be allowed from any Court to her Majesty but from the Court of Chancery, which would have been provided for, to have been from the Court of Exchequer to her Majesty, if an appeal had not been intended to be first in the Chancery.

February 16, 1713.

EDW. NORTHEY.

(2.) OPINION of the same Lawyer, on a question of Appeal.

1717.

To the Right Honourable the Lords Commissioners for Trade and Plantations.

MY LORDS,-In obedience to your Lordships' commands, signified to me by Mr. Popple, I have considered of the petition of William

Cockburn, Esq., whereby he represents to your Lordships that he, being appointed by the Lord Archibald Hamilton, late Governor of Jamaica, to exercise the office of Secretary and Clerk of the Enrolment there (Mr. Page, who was the deputy of Mr. Congreve, who had those offices by patent, voluntarily absenting himself from that island), did execute the same from the 9th of March till the 6th of August, 1716, when he was removed by Mr. Haywood, the succeeding Governor of the said plantation; and thereupon a bill was brought against the petitioner by Mr. Beckford, who was appointed by the said Mr. Congreve to be his deputy, upon the death or absence of the said Mr. Page, and a decree was given against him in Jamaica for more money, as the profits of the said office, than he received during the time that he executed the same, without making any allowance to him for the execution of the said offices; against which decree the Governor cannot, by his instructions, allow an appeal, the demand being under the value of five hundred pounds sterling: humbly praying that his Majesty would be pleased, for the relief of the petitioner, to give directions for re-hearing of his cause, and the doing therein what to justice shall appertain.

And I do most humbly certify your Lordships, that the petition is unadvisedly framed, for that his Majesty cannot, by law, give a direction to any Court to re-hear any cause depending therein; but re-hearings are granted, or denied, by Courts of Equity, on petition of the parties grieved, to such Court as shall be judged proper.

And as to the instructions given to the Governor mentioned in the petition, whereby he is restrained from allowing an appeal in any case under the value of £500 sterling, that does restrain the Governor only from granting of appeals under that value, notwithstanding which, it is in his Majesty's power, upon a petition, to allow an appeal in cases of any value where he shall think fit, and such appeals have been often allowed by his Majesty; but I think the reference to your Lordships in that matter is improper, for petitions for appeal from decrees given in the Plantations have been always referred to a Committee of the Council for hearing the causes of the Plantations, and on their report that it is proper to allow the appeal prayed for, his Majesty in Council has usually allowed the same, and not in any other manner. I have perused

the decree, and think the petitioner has great hardship therein, and that upon a proper application he may obtain an appeal in that cause.

December 19, 1717.

EDW. NORTHEY.

(3.) OPINION of the Attorney General, SIR EDWARD NORTHEY, on appeals from the Admiralty Courts in the Colonies. 1704. To the Right Honourable the Lords Commissioners for Trade and Plantations.

MAY IT PLEASE YOUR LORDSHIPS,-In obedience to your Lordships' commands, signified to me by Mr. Popple, I have considered of the annexed petition of Peter Van Ball, praying the liberty of appeal to Her Majesty in Council from a sentence pronounced in the Admiralty Court of Nevis, and am of opinion, if that Court was held under the late King's commission for governing the Leeward Islands, as the petitioner takes it to be, alleging that the President and Council had power only to appoint, but not to sit themselves as a Court of Admiralty; or if the sentence was given by the President and Council of Nevis, as the Council there in both cases, the appeal ought to be to her Majesty in Council; but if the President and Council held a Court of Admiralty, by authority derived from the Admiralty of England, the appeal is to be to the Court of Admiralty in England; and so it was lately determined by her Majesty in Council.

May 23, 1704.

EDW. NORTHEY.

(4.) OPINION of the King's Advocate, SIR NATHANIEL LLOYD, on the same subject. 1715.

MY LORDS,-In further obedience about the Eagle brigantine, condemned at New York, and appealed upon hither: I find that the appellants have thought fit to drop such appeal, and they proceed no further; so the condemnation stands. Not but that the appellants might have re-heard the cause here, had they thought fit.

For by law appeals do lie from the Admiralty Courts in the Plantations to the Lord High Admiral of Great Britain, in the High Court of Admiralty in England, in common maritime causes,

as in causes of prize property, as taken jure belli, to the Lords of the Council, as Commissioners for Appeals in causes of prize by the American Act.

March 13, 1715.

NATH. LLOYD.

Appeals from the Colonies

in civil cases.

Appeals in

NOTES TO CHAPTER XI.

It is the settled prerogative of the Crown to receive appeals in all colonial cases: per cur. Re Lord Bishop of Natal, 3 Moore, P. C. (N. S.) 156; and see stat. 25 Hen. 8, c. 19, s. 4. The right of appeal is one of the rights of the subject with which the Crown, by its mere prerogative, cannot interfere; for, as was said in Cuvillier v. Aylwin, 2 Knapp, 78, the Crown has no power to deprive the subject of any of his rights; but the Crown, acting with the other branches of the Legislature, has the power of depriving any of its subjects in any of the countries under its dominion of any of his rights.

Appeals to Her Majesty in Council, and by her referred to the Judicial Committee of the Privy Council, are regulated by stat. 3 & 4, Will. 4, c. 41; and by s. 4 it is enacted that it shall be lawful for the Crown to refer to the Judicial Committee any matters whatsoever as Her Majesty shall think fit. See upon this section Re the Nawab of Surat, 5 Moore, Ind. App. 499: see also stat. 6 & 7 Vict. c. 38; 7 & 8 Vict. c. 69, s. 9; 14 & 15 Vict. c. 83, ss. 15–16; and Rules and Regulations made by Order in Council, June 13, 1853. In R. v. Suddis, 1 East, 314, Lord Kenyon, C.J., said: "It has always been considered that the judges in our foreign possessions abroad are not bound by the rules of proceeding in our courts here. Their laws are often altogether distinct from our own. Such is the case in India and other places. On appeals to the Privy Council from our colonies, no formal objections are attended to, if the substance of the matter, or the corpus delicti, sufficiently appear to enable them to get at the truth and justice of the case." And per Lord Tenterden,C.J., in Henley v. Soper, 8 B. & C. 20: "In considering the proceedings of a colonial court, we must look at the substance and not at the form, according to the rule adopted by the Privy Council. If we, sitting in England, were to require in the proceedings of foreign courts all the accuracy for which we look in our own, hardly any of their judgments would stand."

Appeals were granted where judgments had been obtained against the Crown in Victoria, in several actions in the nature of Petitions of Right, without imposing terms or requiring security for costs: Re Attorney General of Victoria, L. R. 1 P. C. 147.

In The Queen v. Eduljee Byramjee, 3 Moore, Ind. App. 481, the Court criminal cases. said that not only in England, but throughout the dominions of the Crown, no right of appeal in felonies has ever existed. "Nor are we aware that in any one single instance the Crown has ever, by the exer

cise of its prerogative, granted leave to appeal in any such case." But it may now be considered as settled law, that an appeal to the Queen in Council from the colonies does lie in all criminal cases. "It seems undeniable that in all cases, criminal as well as civil, arising in places from which an appeal would lie, and where, either by the terms of a charter or statute, the authority has not been parted with, it is the inherent prerogative, right, and, on all proper occasions, the duty of the Queen in Council to exercise an appellate jurisdiction, with a view not only to insure, so far as may be, the due administration of justice in the individual case, but also to preserve the due course of procedure generally" R. v. Bertrand, L. R. 1 P. C. 530. For instances of appeals in criminal cases, see Ames and Others, 3 Moore, P. C. 409; The Queen v. Mookerjee, 1 Moore, P. C. (N.S.) 272; Falkland Islands v. The Queen, Ib. 299; Levien v. The Queen, L. R. 1 P. C. 536; The Queen v. Murphy, L. R. 2 P. C. 35.

Under the several charters erecting supreme courts of judicature in the East Indies, it was provided that in all indictments, informations, and criminal suits and causes, the supreme courts respectively should have the full and absolute power and authority to allow or deny" appeals; and it was decided by the Judicial Committee that where the Supreme Court of Bombay refused to grant leave to appeal in a case of conviction for felony, there was no power in the Crown to grant an appeal: The Queen v. Alloo Paroo, 3 Moore, Ind. App. 488. The charter in that case had been granted under the authority of the stat. 4 Geo. 4, c. 71, s. 7, and Lord Brougham, in delivering the judgment of the Court, said: "The Crown may abandon a prerogative, however high and essential to public justice and valuable to the subject, if it is authorized by statute to abandon it; and here it is in the execution of a power conferred by statute that this abandonment, if any abandonment has been made, has taken place." This had reference to what is said by the reporter in Christian v. Cowen, 1 P. Wms. 329—namely, that even if there be express words in a charter excluding the right of the subject to appeal, these words shall not be held to deprive him of his right. To this doctrine the Judicial Committee refused to assent, citing Ash v. Rogle, 1 Vern. 367; but, for the reason above given, they said that even if it were true it did not apply to the case before them.