him"(1); and pointed out the difference between the liability to be sued and the liability to process in execution; and also upon the case of Tandy v. Earl of Westmoreland, 27 State Tr. 1264. The same distinction between liability to action and liability to process of execution was thought to apply to the case of ambassadors in Taylor v. Best, 14 C. B. 487; but the contrary was decided in The Magdaléna Steam Navigation Company v. Marten, 28 L. J. (Q.B.) 310.

As to the extent of protection from civil liability accorded to public officers on grounds of policy, see Lane v. Cotton, 1 Salk. 17; Whitfield v. Lord Despencer, Cowp. 754; Cunningham v. Collier, 4 Doug. 233; Le Caux v. Eden, 2 Doug. 594; Allen v. Waldegrave, 2 J. B. Moore, 621; Macbeath v. Haldemand, 1 T. R. 172; Unwin v. Wolseley, 1 T. R. 674; Myrtle v. Beaver, 1 East, 135; Rice v. Chute, 1 East, 579; Nicholson v. Mounsey, 15 East, 384; Oliver v. Bentinck, 3 Taunt. 456; Gidley v. Lord Palmerston, 3 Brod. & B. 275; Hodgkinson v. Fernie, 26 L. J. (C.P.) 217; Buron v. Denman, 2 Ex. R. 167; Broughton v. Jackson, 21 L. J. (Q.B.) 265; Auty v. Hutchinson, 6 C. B. 266; Tobin v. The Queen, 33 L. J. (C.P.) 199; Priddy v. Rose, 3 Mer. 102; Dickson v. Viscount Combermere, 3 Fost. & Fin. 585; The Athol, 1 W. Rob. Adm. 374.

In a case where several actions for false imprisonment were brought . by sailors belonging to a merchant vessel which had been captured by a privateer with a letter of marque, but liberated by the Court of Admiralty, against the captain of the privateer, Lord Mansfield said: "This is a new attempt which, if it succeeded, would destroy the British navy. If an action at law should lie by the owners, and every man on board a ship taken as prize, against the captain and every man on board his ship, the sea would be safe for the trade of our enemies, however great our naval superiority:" Lindo v. Rodney, 2 Doug. 613.

Where some slaves escaped from a territory where slavery was lawful, and got on board a British ship of war in the high seas, it was held that the owner could not maintain an action against the commander of the ship for harbouring the slaves after notice: Forbes v. Cochrane, 2 B. & C. 448. There Bayley, J., said that if it could be made out that the defendants acted malá fide, they would be liable to an action, but in order to support an action against a person who fills a public office like that which the defendants filled, it is essential to shew mala fides. And, per Holroyd, J.: “I have given my opinion upon this question supposing that there would be a right of action against these defendants, if a wrong had been actually done by them; but I am by no means clear that even under such circumstances any action would have been maintainable against them by reason of their particular situation as officers acting in discharge of a public duty, in a place flagrante bello." Although not liable to actions of contract at the suit of individuals for

(1) This is in accordance with the Roman law: "In jus vocari non oportet neque consulem, neque præfectum, neque prætorem, neque proconsulem, neque cæteros magistratus qui imperium habent, et qui coercere aliquem possunt, et jubere in carcerem duci."-Dig. ii. tit. 4, § 2.

Privileged

tion.

Act of State.

Criminal liability of Governor.

goods supplied for the public service, public officers may be compelled by mandamus to perform their duty in paying over monies in their hands: R. v. Lords Commissioners of the Treasury, 4 Ad. & Ell. 286. (In the Banker's Case, 14 State Tr. 1, temp. Wm. III., the proceeding was by petition to the Court of Exchequer: see 12 & 13 Wm. 3, c. 12, s. 5.) The Queen v. The Lords of the Treasury, 16 Q. B. 357; Ex parte Sir Charles Napier, 21 L. J. (Q.B.) 332.

As to how far orders given by the Governor of a colony, or by a public officer to a subordinate, are privileged communications, see Anderson v. Hamilton, 2 Brod. & Bing. 156 (note); Cooke v. Maxwell, 2 Stark. 183; Wyatt v. Gore, Holt, 299; Lee v. Birrell, 3 Camp. 337; Horne v. Bentinck, 2 Brod. & Bing. 130; Fairman v. Ives, 5 B. & Al. 642 ; Blagg v. Sturt, 10 Q. B. 899, s. c. in Error, 906. See also the Trial of the Seven Bishops, 12 State Tr. 349, where the Clerk of the Privy Council gave evidence as to what passed in the council chamber.

And as to the rule of public policy in Government prosecutions which protects a witness from answering questions to discover the informer, see Attorney General v. Briant, 15 M. & W. 169; Rex v. Hardy, 24 State Tr. 753, 808, 816; Rex v. Watson, 32 State Tr. 102.

A Governor is not liable to a suit for an act done by him in his political capacity as an act of State: Tandy v. Earl of Westmoreland, 27 State Tr. 1264; Nabob of Carnatic v. East India Company, 1 Ves. Sr. 371; 2 Ves. Sen. 56; Elphinstone v. Bedreechund, 1 Knapp, 316; Buron v. Denman, 2 Ex. R. 167; Secretary of State in Council v. Kammachee Boye Sahaba, 13 Moore, P. C. 22; Wadeer (ex-Rajah of Coorg) v. East India Company, 29 Beav. 300.

With respect to the criminal liability of a Governor, it is enacted by statute 11 & 12 Wm. 3, c. 12, intituled "An Act to punish Governors of Plantations in this Kingdom for crimes by them committed in the Plantations," that such offences shall be tried in the Court of Queen's Bench in England, or before such Commissioners, and in such county of this realm, as shall be assigned by Her Majesty's commission. And by statute 42 Geo. 3, c. 85, any person employed in the service of the Crown in any civil or military station, office, or capacity within Great Britain, who shall commit any crime, misdemeanor, or offence in the execution, or under colour, or in the exercise of his office, may be prosecuted in the Court of Queen's Bench. It has been held that these statutes do not extend to felonies: Rex v. Shawe, 5 M. & S. 403. ExGovernor Wall was tried in 1802 for a murder committed by him by inflicting excessive corporal punishment in the island of Goree in 1782, he being at that time Governor of the island, and he was convicted and hanged (1): 28 State Tr. 51.

(1) Lord Campbell says, in his "Lives of the Chief Justices," iii. 149: "Then a very young man, just entered at Lincoln's Inn, I was present at the trial, and carried away by the prevalent vengeful enthusiasm, I thought that all was right; but after the lapse of half a century, having dispassionately examined the whole proceeding, I came to a very different conclusion."

In 1804, General Picton was tried for a misdemeanor in causing torture to be inflicted upon a mulatto woman in the island of Trinidad, of which he had been Governor. Lord Ellenborough left to the jury the question whether the punishment of torture was allowed by the law of Trinidad at the time of the cession of the island by Spain to England. They found that there was no such law existing at the time of the cession, and a verdict of guilty was recorded. A rule for a new trial was afterwards made absolute; and on the second trial the jury found a special verdict, setting out the facts of the case, and stating that, whether the defendant were upon these facts guilty or not they were wholly ignorant. They found that by the law of Spain torture existed in the island at the time of the cession of the island, and that no malice existed in the mind of the defendant independent of the illegality of the act. The proceedings lasted from 1809 until 1812, when the Court ordered the defendant's recognizances to be respited until further orders; and no judgment was finally pronounced. The prosecution was still pending when General Picton fell at Waterloo : 30 State Tr. 225-956.

In Wall v. Macnamara, cited in Johnstone v. Sutton, 1 T. R. 536, Lord Mansfield said: "In trying the legality of acts done by military officers in the exercise of their duty, particularly beyond the seas, where cases may occur without the possibility of application for proper advice, great latitude ought to be allowed, and they ought not to suffer for a slip of form if their intention appears by the evidence to have been upright; it is the same as when complaints are brought against inferior civil magistrates, such as justices of the peace, for acts done by them in the exercise of their civil duty. There the principal inquiry to be made. by a court of justice is, how the heart stood? And if there appears to be nothing wrong, then great latitude will be allowed for misapprehension or mistake." And in Mostyn v. Fabrigas, Cowp. 161, the same great judge said: "I can conceive cases in time of war in which a Governor would be justified, though he acted very arbitrarily, in which he could not be justified in time of peace. Suppose, during a siege or invasion, the Governor upon a general suspicion should take people up as spies; upon proper circumstances laid before the Court, it should be very fit to see whether he had acted, as the governor of a garrison ought, according to the circumstances of the case." To this may be added what was said by Macdonald, C.B., in Wall's Case, 28 State Tr. 143: "On the one hand, as the Attorney General has most liberally and most sensibly said, when a well-intentioned officer is at a great distance from his native country, having charge of a member of that country, and it shall so happen that circumstances arise which may alarm and disturb the strongest mind, it were not proper that strictness and rigour in forms and in matters of that sort should be required when you find a real, true, and genuine intention of acting for the best for the sake of the public. . . . . But, on the other hand, it is of consequence that where a commander is so circumstanced, that is,

.....

The East Indies.

at a distance from his native country—at a distance from inspectionat a distance from immediate control, and not many British subjects being there-if he shall, by reason of that distance, wanton with his authority and his command, it will certainly be the duty of the law to control that and to keep it within proper hounds."

It is no defence where a man is charged with a breach of public duty, to say that the discharge of that duty belongs to a body whereof he was only one, as in the case of a Governor and his Council, and that the duty could only be executed by the whole body. Each individual of the Governor and Council who does not do what in him lies to discharge his public duty, contracts by his negligence individual guilt: Rex v. Holland, 5 T. R. 623.

In Rex v. Bembridge, 22 State Tr. 155, Lord Mansfield said that, "if a man accepts an office of trust and confidence concerning the public, especially when it is attended with profit, he is answerable to the King for the execution of that office; and he can only answer to the King in a criminal prosecution, for the King cannot otherwise punish his misbehaviour." And he cited 6 Mod. 96, where the Court said, “If a man be made an officer by Act of Parliament, and misbehave himself in his office, he is indictable for it at common law; and any public officer is indictable for misbehaviour in his office." And where, in a criminal information against a member of the Council at Madras, the objection was taken that it did not appear that he was legally appointed, the Court held that it could not be sustained, saying: "In a criminal prosecution, or in an action against a justice of the peace, or against a clergyman, for any offences by either of them committed in their respective situations, every day's practice has settled that the exercise of their offices is, as against them, proof that they are bound to discharge their respective functions:" Rex v. Holland, 5 T. R. 623; see Rex v. Dobson, 7 East, 218.

In Reg. v. Eyre, L. R. 3 Q. B. 487, it was held that under the statute 11 & 12 Vict. c. 42, in the case of a charge of misdemeanor alleged to have been committed by the ex-Governor of a colony, a magistrate within whose jurisdiction the accused had come had jurisdiction to hear the case; and if he committed on the charge, it was his duty to return the depositions into the Court of Queen's Bench, where alone the charge could be tried.

By statute 24 Geo. 3, c. 25, s. 44, it was enacted that all British subjects should be amenable to all courts of justice (both in India and Great Britain) of competent jurisdiction to try offences committed in India for all crimes and offences whatsoever by them committed in any of the territories of any nation, prince, or state, in the same manner as if the same had been committed within the territories directly subject to and under the British Government in India. See also sects. 49 and 64 as to misdemeanors committed in the East Indies by British subjects holding offices or employments under the Crown or

under the East India Company: see also 26 Geo. 3, c. 57, s. 15. Sections 44, 49, and 64 of the first-mentioned Act were repealed by 33 Geo. 3, c. 52, s. 146. But while they were in force, a criminal information was filed in the Court of Queen's Bench against Holland, who had been acting Governor of Madras, and one of the counts charged that he "did not commence and prosecute the war against Tippoo Sultan with all possible vigour and decision." The Court held that this was too vague, and therefore bad. Other counts charged the defendant with disobedience to orders, and the Court said that they were stated to have been given by those who were empowered by the statutes to give them, and when the orders were given they must be taken to remain in force until they were revoked or contradicted. They held, therefore, those counts good on demurrer. Another point taken was, that notice to the defendant was not sufficiently averred on the record; but the Court said that all the facts to which this objection applied arose within the Presidency, when the defendant was one of the Council, and therefore he was bound to take notice of them: Rex v. Holland, 5 T. R. 607.

Islands.

The Governors of Jersey and Guernsey have been more than once Governors of impeached in Parliament. This happened in the case of Otho di the Channel Grandison, in the reign of Edward I.; William Paine, in the reign of Edward III.; Sir Philip de Carteret, in 1642; and Colonel Russell, in 1647. But for a breach of military discipline, the Governor of either of those islands must be tried by court-martial, as General Corbet, the Governor of Jersey, was in 1781, for having surrendered the island to the French without making an effective resistance. He was found guilty, and sentenced to be superseded: see "The Constitution of Jersey," by Le Cras (Jersey, 1857), p. 11. In the case of General Napier, Governor of Guernsey in 1845, the Guernsey Court transmitted a complaint against him to the Privy Council, as the Court had no jurisdiction over him: Ibid.