ADMINISTRATION OF JUSTICE IN THE WEST INDIES. (Hansard, 11 March 1836)

§ Lord Glenelg
rose to move the second reading of the Bill for the Improvement of the Administration of Justice in the West Indies. The islands comprehended in this measure were all those belonging to the British Crown that he between Jamaica and Trinidad—being known under the denomination of the Windward, and Leeward, or Caribbee Islands. The questions that naturally arose with respect to the administration of justice in those colonies were—first, whether the colonies required a better system of administration of justice than they now 190 possessed; and secondly, whether the Bill was calculated to give it. With respect to the defects existing in the present system, he might press the necessity of this Bill from the general notoriety of the fact. He would not, however, rest on that general notoriety, as he thought it due to their Lordships to enter into a particular statement. This he should do but briefly; especially as he was aware that, although the subject was one of paramount importance to those it more immediately concerned, yet it was not one of general interest. He believed that no principle was more universally admitted than this, that the existing system in those colonies was defective, and required improvement. The principal defect was that perhaps which arose from a want of qualification of the Judges and jurors by reason of their ignorance of the law, and of their being generally involved, by their local connexions, in the cases that came before them. This great evil might be generally ascribed to the origin of the Courts of Justice in those colonies. The majority of the islands were legislative colonies; Trinidad and St. Lucia being the only two Crown colonies to be affected by the Bill. It seemed to have been thought at the first foundation of those local legislatures, that it was indispensable the judicature of England should be transferred to the colonies; consequently, there are in every one of those islands a Court of King's Bench, a Court of Common Pleas, and Court of Chancery, with corresponding functions to those Courts in England. The transfer however, had been made without much consideration of the different circumstances of the colonies, and in such small communities there was not sufficient foundation in wealth and population to make such a system work well. He would advert shortly to the Courts in those islands, both of criminal and civil jurisdiction. The criminal jurisdiction was affected by means of a commission issued under an Act of the local Assembly by the governor of the island. All the tribunals were constituted in those islands, not by the Crown, but by an Act of the local legislature, sanctioned, of course, by the Crown. The Commission professed to be also a transcript of the practice of this country, by constituting what were called Courts of Oyer and Terminer, and Commissions of gaol delivery; but there was this difference, that in England, the persons inserted in the Commis- 191 sion, consisted of Judges and Counsel learned in the law, whereas the Commissions in the West Indies were composed of persons who had no knowledge of the law, but were Members of the Council and of the Houses of Assembly and Justices of the Peace; consequently, there was no lawyer upon these Commissions. But this was not the only inconvenience—for the Judges thus appointed were necessarily more or less connected with other pursuits. The evil extended itself also to the juries, though constituted like juries in England. In consequence of the great number of persons of the more respectable classes included in the Commission, and made Judges of what was called "The Court of Grand Session," a very small number of persons could be found from whom the Juries could be selected, and the consequence was, the juries were often composed of persons connected with the localities and influenced by the interests of individuals where they acted. When the Court met, there being no lawyer to preside over the proceedings, the Juries became Judges both of the law and the fact, for there was no one to sum up the evidence to them, nor any authority to direct their discretion, so that they had to collect the law as well as the facts from the statement of Counsel. One consequence had been, that the Attorney-General had to a certain extent taken upon himself the functions of a public prosecutor. He framed the indictments and placed the whole case before the Grand Jury; and it very often happened that he summed up the evidence on the trial. The Chief Justice, who was a member of the Commission, took his seat also as a Justice of the Peace. He would not dwell on the inconveniences that flowed from such a system, but would content himself with stating that they were of a nature very detrimental to the administration of justice. In one of these colonies—a case in which some slaves were convicted of murder occurred; but the Bench addressed the Governor on the subject of the evidence, with which they were not satisfied; the matter was referred to this country, and the Law-officers of the Crown here gave it as their opinion, that there was not the shadow of a ground for convicting the parties who had been tried, as the material witness against them had not been put upon his oath! He could not help adverting, for a moment, to what 192 was stated to the Commissioners of Colonial Inquiry on this subject in reporting upon one of these islands; and which would tend to show the opinion of those most qualified to give your Lordships information on this question. The Commissioners said:— The Chief Justice thought he could suggest very great improvements in these Courts. The Courts, at least ought to have one presiding Judge, who has been admitted to the Bar in England. Such a Judge would know the laws, usages, and practice that govern the Criminal Courts in England, and which ought to govern them here. Besides, by altering the Constitution of the Court, and diminishing the number of Judges, many, who now compose it, would be left to serve in the important character of Grand Jurors of the country. Again, the Court ought to sit oftener than it now does; for great inconveniences may occur by offenders either being confined for a long space of time, or put to the necessity of finding sureties for their appearance at a remote period; one of which circumstances amounts to punishment before conviction; and the other, in the case of a stranger, to a grievous hardship. Without dwelling further on this part of the subject, he would proceed to consider the circumstances attendant upon the civil jurisdiction. It might be proper that he should remind their Lordships, that in the year 1822, a Commission was appointed to examine into the state of the administration of justice in the West Indies; that that Commission was composed of learned and able men who visited the islands in succession; and that after a course of years they made Reports, successively, which were now before Parliament, and it was only justice to those gentlemen to state, that the duty imposed upon them was performed in a manner which reflected on them the highest honour. Without troubling their Lordships with many details, he would take the case of the island of Barbadoes as an example, in which their Lordships would perceive that the Judges were multiplied without necessity, that they were unskilled in the law, and involved in party and local interests. That island contained only 166 square miles, and the population amounted to little more than 100,000 souls; it was divided into five districts, and each district had five Judges. Consequently, there were twenty-five Judges in that little island alone; but among those Judges there was not a single person who was a lawyer, or who was acquainted either with the principles or the operation of the law; and 193 they were all deeply involved in the local politics of the island. If their Lordships assumed this as a fair sample of the other islands, they would at once perceive that there was no part of the world, perhaps, where justice, therefore, could be so easily defeated as in these colonies. So much of their cultivation was carried on by means of money borrowed on mortgage, that every expense incurred operated as a burden on the colonial agriculture, and entered as an ingredient into the best of ail their productions. Still the main evil, as regarded the proceedings of these Courts, was that which resulted from the irregularity of their decisions, and the suspicion which necessarily attached to them in the minds of the colonists. It was impossible for the Judges, locally connected as they were with the colonies, not to be involved in all the disputes and animosities which inevitably occurred in these small communities. With the very best intentions, it was not possible for human nature to keep them correct through all these temptations, and prevent that bias of their judgment which their peculiar positions exposed them to. By them, the greatest acts of injustice might be committed, without any consciousness or design on their part. With reference to this branch of the subject, he would read what the Commissioners had stated in one of their Reports relative to the Courts of Common Pleas at Barbadoes; and the same statements would apply to other islands. They observed:— Rules in these Courts are unknown, or disregarded, or only perversely and partially applied. Great irregularities are therefore constantly practised, not from bad intention, but from ignorance of law. I feel anxious to be understood as not meaning to impute to the Judges of Barbadoes, or to the Governors, who are sole Chancellors in the other islands, any improper design in a single instance; but I must be permitted to say, that where they feel the greatest anxiety, and use the utmost exertions to do right, not being governed by wise and fixed rules, or adhering to any settled practice, the same in all cases, their very justice is capricious, and they often mistake their course and fall into fatal errors. Without dwelling invidiously on the mistakes and mischiefs of the Courts as at present constituted, or repeating coarse reflections on the deficient attainments of the Judges, it is sufficient to observe, that there existed a general feeling that a presiding lawyer was absolutely necessary in all the Courts. A very considerable party in the colony further required, "not only that the persons to preside in their Courts 194 should have received a regular professional education, but also that they should be strangers to the colony, unconnected with its inhabitants, and unaccustomed to its irregular proceedings. The trifling delays in Court (occasioned by the attorneys doing as they please), and the charges of expense and uncertainty, which are more serious and better founded, all originate in the incurable vice of the system. The constitution of the Courts themselves is favourable to the growth of expense, and induces a suspicion of connivance at irregularities. The Judge is paid by fees, for which he is dependent upon attorneys, whose bills it is his duty to lax. Though often estimable and excellent men in private life, the Judges are very unfit for the office. There are twenty-five Judges of the different Courts of Common Pleas, and as many more must be added belonging to the other Courts of the island. None of them have been prepared by previous professional education and habits for the situation they hold. Though very far indeed from being corrupt, they are, technically speaking, ignorant, and therefore incapable of detecting corrupt practices in others. It is the same with irregularities; they are not aware of them, having only a confused and imperfect knowledge of the rules and principles of law. Five different Chief Judges, presiding in independent jurisdictions, having no necessary communication, variously endowed, engaged in dissimilar occupations, having had no common studies, may, it appears to me, very excusably, establish five different rules of law. In the Court of Chancery, it is still less to be expected that the decisions should be uniform and consistent. Such a view of the question was confirmed by other writers, particularly by Mr. Innes, a very intelligent gentleman, who visited the West-India Islands, expressly to inquire into the state of society.—the system of government,— and the administration of the laws there. Within the last few years, too, there had been preferred to the Home Government no less than five or six complaints from one of these islands, with respect to unjust decisions pronounced by the Colonial Judges, arising out of their personal or local connexion with the inhabitants; and within the last fifteen years, in consequence of such complaints, no less than ten Judges had been suspended. With respect to another Court—the Court of Error—it was liable to similar objections. It might be compared to the Exchequer Chamber in this country. It was a Court of Appeal, consisting of the Governor and three or four other individuals. It was 195 very true that the Governor might sometimes decide properly by reversing the decisions come to in the Court below, and thus give satisfaction to the parties; still, from ignorance of the law, on the part of those who were charged with its administration, there must arise a want of uniformity in the decisions, and of regularity in the proceedings, which required to be remedied. He could mention a case in which a party, being a suitor in the Court of Chancery, had a cause decided against him by the Governor, on some ground, as was suspected, of personal revenge. The same grounds of objection exist as to the judicial administration of the Court of Chancery on all the islands; and he would read one or two documents, in order to show the prevalence of this feeling among men well qualified to give an opinion on the subject. The answer of the Attorney-General to the Commissioners is too manly, sensible, just, and candid, to be either omitted or retrenched. The present constitution of this Court (the Governor associated with the Members of Council) is wholly inadequate, in my apprehension, to the due and proper administration of the law. The Governor, who is mostly of the military or naval profession, cannot be expected to be possessed, either of the habits or the knowledge to qualify him for the office of Chancellor. And the Members of Council, being mostly men of extensive connexions and influence in the colony, and not bred to the legal profession, are also, in general, very little qualified to sit in this Court; and I conceive it would be much more advantageous to the suitors, and greater satisfaction would be given, if the Governor would sit alone. There have been frequent occasions where the Members have been summoned to form a Court, who, either from sickness or other cause, have not been able to attend; and the party applying to the Court, has thus been put to a fruitless expense of from 15l. to 20l. currency. This I have known to have happened more than twice in succession; so that a party having a motion to make, may be put to a fruitless expense of from 50l. to 60l., or 100l., before be can be heard, because the members are not able to attend; whereas the Governor, sitting alone, would have the power of holding a Court wherever there might be business to be done. But the great desideratum—that which would bring gladness and joy—which alone could afford security to the colonists—would be the appointment of a lawyer, of tried know-ledge and ability, to fill the important situation of Chancellor. I consider this measure as likely to enhance the value of property at least 15 per cent. 196 When the same Commissioners were waited upon by a deputation of merchants, after the business was concluded, one of the gentlemen addressing the Commissioners "in the name and on the behalf of the merchants of the colony," stated, "that there was a general wish for a reform in the judicature of the colony, and particularly in the Court of Chancery, and he expressed much satisfaction at the prospect of having a sole Chancellor, a lawyer, unconnected with the island, to sit in that Court. He had, he said, several suits to bring, which he was deterred from instituting by the circumstance of the defendants, in each case, having several powerful friends upon the Bench, who could not help showing favour to their connexions.
Of another of the islands the Commissioners reported:— The President informed us, that the Court of Chancery in this island had been several limes presented a nuisance; but that, with the exception of one sitting this summer, he thought no business had been transacted in it for seven or eight years. It ought not to be held in the island, for it was impossible, out of so small a society, to get Judges in any case unconnected with the parties. The Chief Justice said:— There was formerly (about fifteen or six. teen years ago) great dissatisfaction with the Court of Chancery in this island, and, he believed, not without reason. He feared there were some unrighteous decisions; certainly there was no uniformity in their judgments; and there was thought to be influence and favour; and whether this were true or not, it was not desirable to have it suspected. The King's Counsel said: There has been no sitting in Chancery since 181.5. There was no suit depending lately. Now there is one. As regarded another of these islands, the Chief Justice observed: The decisions of this Court are complained of. I do not know by what rule they are made. He had other evidence to lay before their Lordships, but he thought he must satisfy them that some improvement was much needed. With respect to the measure itself, he had great satisfaction in stating, that it had received the sanction of many high authorities. He could say so with propriety, for he could lay but little claim to any merit concerning it, except that of introducing it to their Lordships. It was recommended in a Report of the Commissioners in 1826; it was then sanctioned by Lord 197 Bathurst, and afterwards received the approbation of Lord Eldon, and had since been sanctioned by several succeeding Secretaries of State, and was intended to be introduced by them in successive Sessions of Parliament. But though he was bound to disclaim all the merit of the measure, he must say, that he had introduced it without reference to the authority of others, but upon his own conviction of its utility, and upon his own responsibility. He thought that no measure had yet been suggested that was so likely to accomplish the end desired as the one he was now considering. The principle of the measure was this, that the West India Islands should be divided into two districts, for the purpose of the administration of justice; one of these districts would comprise the Islands of St. Vincent, Grenada, Barbadoes, Tobago, and their dependencies; the other districts would embrace Montserrat, Antigua, St. Christopher, Nevis, Dominica, the Virginian Islands, and their dependencies. Each district should have two Judges, who were to go the Circuits through the islands in their district. These two Judges would be called the Chief Justice and the Senior Puisne Judge. The tribunals on the Circuits would be composed of these two Judges, and the Junior Judge of the Island; it being proposed that in each Island there should be a Resident Junior Judge. The Circuit Courts, therefore, would have three Judges. This plan was justified by the recommendation of the Commissioners, and appeared to be amply sufficient for all the purposes required. The resident Junior Judge would be employed in the intervals of the Circuits in business similar to that which was now transacted by Judges in this country at chambers. The resident Judge would also be Chairman of the Quarter Sessions. He had said, that there were many grievances which required to be remedied, but this Bill applied itself to one only, namely, the qualification of the Judges who were to execute the law. But it did not apply itself to those other evils that would naturally occur to persons acquainted with these Islands. It was a principle of this Bill to confine itself to that evil which, for its removal, required the interposition of Parliament. Whatever grievances could be remedied by the Local Legislatures, it. should, in his opinion, in the first instance, be so remedied. Beyond this the principle had not gone, 198 It would rest with the Local Legislatures to take the question into consideration, and if they approved of this measure, it would be for them, at their discretion, to remedy those other existing evils to which he had adverted. He might observe, that one of these was the want of a public prosecutor, which the Colonial Legislature would, he hoped, supply; that was a point left open for consideration. Upon the point of expense, he might observe that the funds employed under the existing system would, he believed, be amply sufficient to defray all the charges of the new one. It was, perhaps, unnecessary for him to observe, that the application of steam navigation, whilst it would greatly facilitate the conveyance of the Judges from island to island, would not greatly increase the expense. The two Circuits of the Windward Islands would not exceed 830 miles, and, consequently, with the aid of steam, would be easily accomplished. Such were the principal points of the Bill he had now the honour of introducing to their Lordships. A very natural inquiry might arise, as to how it happened that a measure so sanctioned, so recommended, and so earnestly desired, as he believed it was, by the Colonies, should have been delayed to this late period. The immediate reply to such an inquiry was, that there were inevitable and insurmountable difficulties to the introduction of such a measure at any time previous to the abolition of slavery. During the existence of slavery, it was impossible that such an experiment could be tried. The very question of slave evidence alone, was enough to alter the whole course of justice. There was another reason for the delay. Till within a few years past, there existed in the Colonies considerable irritation and much suspicion with respect to the intention of the Home Government on the subject of slavery; and any attempt to interfere with the internal legislation of the several islands, was regarded with the utmost jealousy. Whilst this state of things continued, the experiment could not be tried with any hope of success. But as the chief impediment in the way of improvement was now removed, his Majesty's Government deemed it the proper time to come forward with the measure which he now most earnestly recommended to their Lordships' adoption. It would have the effect, he believed, of introducing a better 199 administration of justice, of removing the Judges from all suspicion of local partialities and animosities, and of securing the administration of the law upon sound, solid, and good principles: it would give protection to property, raise the credit of the Colonies, and, above all, give to our coloured fellow-subjects a confidence of security and protection under the same laws that guarded the rights and property of the whites. The noble Lord concluded by moving the second reading of the Bill.

§ The Earl of Ripon
entirely concurred with his noble. Friend, thinking that the circumstances in which the West-India islands were placed with respect to the administration of justice, were such as to deprive the Courts of Law of all confidence and respect; and, therefore, it was absolutely necessary that some efficient and fundamental alteration should be made to give to the inhabitants of those islands a pure and unsuspected administration of justice. He agreed with his noble Friend, also, in the mode by which he proposed to effect the remedy. His noble Friend had very fairly stated the nature of the difficulties which had prevented his predecessors from bringing forward a measure of this description. It was not that their attention was not drawn to the subject; not that they were not fully impressed with the truth of the representations that were made, and the inferences that were drawn after Lord Bathurst sent out the Commissioners; it was not that they were insensible to the pressure and urgency of the case, but they felt, that as long as the question of slavery remained unsettled, it would be utterly impossible, in the midst of the excitement and agitation which prevailed upon that subject, to effect any change of this description, unless they attempted to do so by the maintenance of a principle which this Bill excluded, and which they were not prepared to support, namely, the principle of forcing the Colonies to comply with the wishes of Parliament, without obtaining their own legislative assent. When the settlement of the Slave Question was effected by Parliament, he felt that the time had arrived when the work of improving the administration of justice in the Colonies might be safely undertaken; and he understood from his noble Friend (Aberdeen) near him, that he was prepared with a measure upon the subject, embrac- 200 ing all the details of the measure now brought forward by his noble Friend opposite, and which he would have introduced to the consideration of the Legislature, if he had continued to hold the seals of office. He would close his observations upon the measure before their Lordships, by simply stating that it met with his entire and hearty concurrence. There were, however, one or two remarks which he wished to offer, and which he thought would be found worthy the attention of his noble Friend, first as to the remuneration of the Judges. He was sure his noble Friend knew how difficult it was to obtain from the English bar gentlemen who were competent to fill the situation of colonial Judges. This difficulty he thought would be increased, unless some provision were made to secure to the Judge in the West Indies a certain and definite income. As the Bill now stood, a Judge, on arriving in the Colony, might find that he had no income, and for this he would have no redress whatever, except an appeal to Parliament in this country, which, for aught he (Lord Ripon) knew, might not be disposed to listen to his claim. It appeared to him to be of the utmost importance that steps should be taken to secure to the gentlemen who went out as Judges, a certain and adequate remuneration. The next point to which he wished to refer was with respect to the islands of Trinidad and St. Lucia. The noble Lord had stated that the Bill contained a clause which would enable his Majesty, at any time, to include those islands in one of the two circuits which it was proposed to establish. He thought that this would not be advisable until after the experiment had been tried in the other islands, because the great dissimilarity which existed between the English law and the old Spanish law which prevailed in Trinidad, and the old French law which continued in St. Lucia, might lead to much inconvenience, if the change were suddenly applied. If the inhabitants of these two islands, after witnessing the operation of the English law in the other islands, should express a desire to have the same law extended to themselves, it would then, probably, be time enough to include them in the circuit. The noble Earl concluded by repeating his approbation of the measure, which would confer upon those distant possessions the greatest of all blessings—an easy, safe, and just administration of the law.

§ Lord Glenelg
thanked the noble Earl for the manner in which he had expressed his approbation of the measure; and promised him that the observations he had thrown out should receive his best attention. He felt bound in justice to repeat, that no merit attached to him for the introduction of this measure; because it had, in fact, been prepared, and was intended to have been introduced, by his predecessors in office; who had only been prevented from doing so by the insurmountable difficulties to which he had before alluded, and also by the rapid change of secretaries in the Colonial Department. He knew that his noble Friend (the Earl of Ripon) opposite, his right hon. Friend the present Chancellor of the Exchequer, and Lord Stanley, had the fullest intention of bringing forward a measure of this description; but the short time they remained at the head of the Colonial Department prevented the executing their intention. He, therefore, claimed no merit whatever for the introduction of the measure.