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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 bounds.”

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.

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 Islands. 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.

CHAPTER IV.

ON VICE-ADMIRALTY JURISDICTION AND PIRACY.

(1.) Letter from J. A. STAINSBY, ESQ., to SIR JAMES MARRIOTT, King's Advocate (1).

Ever since I saw you I have been very busy in ransacking our authors who have wrote upon the origin and constitutions of our law, to trace (if possible) those of the Admiralty, to throw a light upon the question raised of precedence between an Attorney General and the King's Advocate in the islands; but can meet with nothing satisfactory, except that it is clear that though the name of Admiral is not met with till after the Crusades commenced, yet the office was in effect among the Romans, and voluntarily adopted by the Saxons, and that his power was upon the altum mare only. But the commissions for 150 years after the Romans being all lost, it is no wonder we are in the dark: but it is said in Co. Littleton, 260, that the Admiral and Court of Admiralty in Richard I.'s time was said to have been out of mind, which must mean the office only, but not the name, as is clear from the latter being of Saracen extraction (Enur, d, i. e., great or high lord), and brought in by Edward I. on his return from the Holy Land; and the title of Admiral of the King's Seas occurs in 1386, and in 4th Inst. 134, that it was generally held to have been created by Edward III., I think probably by Edward I., as I find by Acta Regia that the famous civilian Accursino, professor at Bologna, was in his service and confidence, and had a pension from him; but the constitution of it does not appear, only the title of the index. Perhaps the argument of Sir Leoline Jenkyns (who was judge of that court) before the House of Lords in Charles II.'s (1) From a M. S. in the possession of Sir Travers Twiss, Queen's Advocate, which formerly belonged to Sir James Marriott, King's Advocate. No date.

time, upon the statute 13 Richard 2, c. 5, made to keep it in due bounds, would throw light upon the subject. The clearest account I have met with is in Spelman's Glossary, p. 14; in Bacon on Government, part ii. p. 26; and in Mr. Solder's Notes on Fortescue de laudibus legum Angliæ, p. 69, to the above purport, and which is introduced by a modern writer (Schomberg) on the Maritime Laws of Rhodes, who informs us of the constitution of the French and Holland Courts of Admiralty, but not of ours.

As to the King's Attorney, it appears there was an officer under that name in the year 1279, 7 Edward I., and continued under that style for near 200 years, when, in 1462, in 1 Edward IV., a Solicitor General was appointed, and the Attorney had the additional term of General annexed to his office, which both continue to this day.

J. A. STAINSBY.

(2.) OPINION of the King's Advocate, SIR JOHN COOKE, on the Jurisdiction of the Court of Admiralty in the Colonies.

1702.

Ships trading contrary to the Act of Navigation (12 Car. II. c. 18) are to be prosecuted, and the penalties arising thereon to be recovered in any Court of Record: the words of the Act are general, without a particular mention of England, or of the plantations, and include the Admiralty Courts of both places, they being the King's courts, and consequently Courts of Record.

in

any

Ships trading contrary to the Act for Encouragement of Trade (15 Car. II. c. 7) are to be prosecuted, and the penalties arising thereon to be recovered in any of his Majesty's courts in the plantations, or Court of Record in England; and it is certain that the Admiralty Court is the King's Court, and was so allowed to be by all the judges under their hands, anno 1632. In the eleventh paragraph of the statute, for preventing planting tobacco in England, and for regulating the plantation trade (22 & 23 Car. II. c. 26), it is said that, upon unlawful importations to, or exportations from the plantations, one moiety of the several ships, and of their ladings, shall go to the King, the other to him who shall seize and sue for the same, in

any of the said plantations, in the Court of the High Admiral of England, or of any of his Vice-Admirals, or in any Court of Record in England-by which the jurisdiction of the High Court of Admiralty is plainly founded, as is likewise that of the Admiralty Courts in the plantations, which, in respect to the Admiralty of England, are Vice-Admiralty Courts; and it is observable, that both the Admiralty Courts are mentioned before the Common Law Courts, as being principally intended by the makers of that statute for such proceedings; and it is further evident by the same clause, and the two which follow in that statute, that the Admiralty jurisdiction is not so confined, but that it may hold cognizance of, and determine the offences, though the goods are valued, and seised, on land.

The three statutes above-mentioned,-viz., the 12th 15th, 22nd, & 23rd of King Charles II.-are recited in the Preamble of the last Act, relating to the plantation trade (7 & 8 Will. 3), and that last Act does sufficiently establish the Admiralty jurisdiction, in offences against the Acts of Trade, in as ample a manner, and in the same words, as it doth the jurisdiction of the courts at Westminster Hall; and if it be objected that in those two places, it is only said that the proceedings for the penalties and forfeitures arising from the offences, and not for the offences themselves, shall be had in the Courts of Admiralty, it may be answered, that the courts of Westminster have no more or other jurisdictions, for they are mentioned in the same manner as the Admiralty Courts, and not otherwise however, the offence and the penalty is all one cause, and of the same cognizance, and are determined all at once; for to suppose otherwise, were to make one court put in execution the decree and sentence of another, which were absurd and impracticable.

Against the jurisdiction of the Admiralty Courts in the plantations, thus deduced and asserted, there is a seeming objection, from a clause of the aforesaid statute, 7th and 8th Gulielmo III., where it is declared, that upon all suits brought in the plantations, on offences against the several Acts, relating to the plantation trade, by reason of any unlawful importations, orexportations, there shall not be any jury but of natives of England, Ireland, or the plantations, from whence it may be argued, because Admi

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