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during his Government, even for acts of State done by him, much less for a private debt, contracted in his individual capacity, before his Government commenced. It is only a decision that he was liable to be sued in England for personal wrongs done by him while Governor of Minorca. Nor does the decision thus given rest upon any doctrine denying his liability to be sued in the Island. There is no doubt, a dictum of Lord Mansfield in giving the Judgment, that “the Governor is in the nature of a Viceroy, and that, therefore, locally during his Government no civil or criminal action will lie against him.” And the reason, and the only reason, given for this position, is, because upon process he would be subject to imprisonment. With the most profound respect for the authority of that illustrious Judge, it must be observed, that, as has been shown, the Governor being liable to process during his government, would not, of any necessity follow from his being liable to action, and that the same argument might be used to show that, an action lies not, against persons enjoying undoubted freedom from arrest by reason of privilege. But the decision in the case does not rest on this dictum; on the contrary, Lord Mansfield goes on to say that another reason of a different kind “would alone be decisive, and indeed the dictum itself is introduced as if the question had arisen upon a plea in abatement to the jurisdiction—whereas, it arose not on the pleadings, at all, as his Lordship more than once remarked. Nothing can be more clear than—the action being of a transitory nature—its being maintainable in Minorca would not have prevented it from lying in England also. It is a possibility that the expressions used may have been somewhat altered in the report; but, supposing the report is quite accurate in all respects, the decision in no way supports the contention of the appellant. Respecting the alleged judicial powers of the Governor of Trinidad it cannot be alleged that the process runs in his name; and even if he were (which he is not) the Court of Error, that would not decide that he cannot be sued. The Judges of Courts in this country, which have the most unquestionable jurisdiction in certain actions, are themselves liable to be sued in such Courts; and cases might easily be figured in which great difficulty would arise how to try suits brought against them in consequence of their official position; but the possibility of such difficulties, whatever legislative enactments it might give rise to upon its nearer approach, can never surely be urged as a reason for denying what all men know to be the law, namely, that those parties are liable to be sued.
It may safely be affirmed that they who maintain the exemption of any person from the law by which all the King's subjects are bound * * are bound to show some reason or authority leaving no doubt upon the point. * * * Nor must we forget, in reference to the position of the Supreme power in the State, that, by our law and constitution, it is not in the Sovereign, but in the Parliament—the Sovereign himself being liable to be sued, though in a particular manner. But, it is not at all necessary that, in holding a Governor liable to be sued, we should hold his person liable to arrest while on service, that is, while resident in his Government.
In Musgrave v. Pulido (a very recent case decided 13th December, 1879, 28 W. R. 373) it was held by their Lordships of the Judicial Committee (following the decision in Hill v. Bigge) that there was no personal privilege appertaining to the office of Governor which exempted him from being sued in the Courts of the Colony of which he was Governor—that the Governor of a Colony (in ordinary cases) cannot be regarded as a Viceroy, nor can it be assumed that he possesses general sovereign power; that his authority is derived from his commission, and limited to the powers thereby expressly or impliedly entrusted to him.
The Appeal was instituted by the Crown from a judgment of the Supreme Court of the Island of Jamaica, of the 6th of July, 1878.
The appellant was Sir Anthony Musgrave, K.C.M.G., Governor of Jamaica, and the suit was brought against him in November, 1877, for the recovery of £14,000 damages in trespass, for the alleged unlawful detention by the Governor or his agents of a ship called the Florence, of which the respondent, Senor José Ignacio Pulido, was the charterer. The declaration set forth that the ship, while on a voyage from Colon, in Columbia, to St. Thomas, put into the port of Kingston, Jamaica, in distress and for repairs, and that when she was ready to leave, the Governor and others detained her for a month, putting the respondent to great expense in procuring her release. The Governor answered that at the time of the grievances alleged there was a proclamation in force prohibiting persons from exporting or sending, among other things, gunpowder, percussion caps, arms, or ammunition of war; that such articles were found stored on board the Florence and were consequently detained; and that the act of detention was done in his official capacity as Governor, in the bond fide discharge of his duty as such, without any personal interest of his own. After this, the Governor, by his attorney, accepted service of the writ. The Court held that, assuming the existence of the right, immunity, or privilege claimed on behalf of his Excellency, it must be considered as waived to the extent of his appearance to the action. His Excellency then pleaded formally that he was entitled, as Governor, to the privileges and exemptions appertaining to the office and its holder, and that the acts in question were done in the exercise of his reasonable discretion and as acts of State. The case was argued on demurrer before the Supreme Court on the 6th of July, 1878. The Chief Judge (Sir J. L. Smith) in giving judgment (in which Mr. Justice Ker concurred), said, in effect, that it must be taken to be established that there was no personal privilege appertaining to the office of Governor which exempted him from being sued in the courts of the colony of which he was Governor. (“Hill v. Bigge,” 3 Moore's Privy Council Reports, 465.) The Governor of a colony did not represent the Sovereign generally, but had only the functions delegated to him by the terms of his commission—in other words, the Governor of a colony was not a Viceroy, but simply an officer with limited authority from the Crown. A foreign Ambassador, on the contrary, was absolutely exempt from all municipal jurisdiction by the comity of nations and the rules of international law. As to the other plea, the Chief Justice held that it failed to show how or in what way the acts complained of were to be regarded as acts of State. The demurrers were therefore allowed. From that decision the present appeal was instituted. It was argued for the Governor that the pleas were good; that his Excellency, as Governor of the Island, was not liable te be sued in an action of trespass, or for acts done by him as acts of State; and that the demurrers admitted that the acts complained of were done by the Governor in his reasonable discretion and as acts of State. On the other hand, it was contended that there was no personal privilege exempting the Governor from being sued, and that the judgment of the Court below was correct. Their Lordships, in their judgment, said, that as a plea of privilege claiming immunity to the Governor from liability to be sued in the courts of his colony, it could not be sustained. This was the effect of the decision of the Judicial Committee in the case of “Hill & Bigge.” The plea must show by proper and sufficient averments that the acts in question were acts of State within the limits of the Governor's commission, done by him as a servant of the Crown. In other words, it must be shown that the acts, as acts of State, were not cognizable by any municipal Court. In the case of “Fabrigas v. Mostyn,” the defendant, who was the Governor of Minorca, pleaded that he banished the defendant to preserve the peace of the Island and without undue violence. The plea, however, was not proved; but Lord Mansfield stated, that if the justification pleaded, had been shown, the Court might have considered it a sufficient answer. In the later case of “Cameron v. Kyte "it was decided by the Judicial Committee that the simple act of the Governor alone, unauthorized by his commission was not equivalent to an act of the Crown, and in “Phillips v. Eyre" it was in effect declared that, but for the Colonial Act of Indemnity, the action might have been maintained. Let it be granted, that for acts of power done by a Governor under and within the limits of his commission he is protected, because in doing them he is the servant of the Crown, and is exercising its sovereign authority; the like protection cannot be extended to acts which are wholly beyond the authority confided to him. Such acts, though the Governor may assume to do them as Governor, cannot be considered as done on behalf of the Crown, nor to be in any proper sense acts of State. When questions of this kind arise, it must necessarily be within the province of Municipal Courts to determine the true character of the acts done by a Governor; though it may be, that, when it is established that the particular act in question is really an act of State policy, done under authority of the Crown, the defence is complete, and the Courts can take no further cognizance of it.
Their Lordships consequently decided that the plea of privilege raised by the defendant was unmaintainable.
In Jolyet al. & Macdonald (23 L. C.J., 16), an injunction was issued by the Superior Court, Montreal, against the defendants (the Commissioner of Public Works and the Government Engineer), at the instance of the contractor MacDonald, to restrain them from taking possession of a public work, together with the contractor's works and property. The Defendants refused to obey the writ of Injunction and took possession of the works. A motion was then made by the Defendants to dissolve the Injunction order, while they remained in contempt, which was dismissed. On appeal from the judgment dismissing this motion :
It was held, by the Court of Queen's Bench as one of the grounds of dissolving the Injunction (Monk and Ramsay, J.J., dissenting) that an injunction cannot issue against the Crown, or to restrain the execution of an Order-in-Council sanctioned by the Crown, and that this is a necessary consequence of the rule that the Crown cannot be sued or impleaded, at least without its own consent.
Kirk v. The Queen (L. R., 14 Eq., 558). A motion was made by a contractor for public works—who had presented a Petition of Right— for an Injunction to restrain the Secretary of State for War, pending the hearing, from preventing the suppliant completing his contract. The contract gave power to the War Office to fix the time within which any proportion of the work was to be completed, and to determine the contract in case of undue delay. Repeated warnings having been given to the contractor of dilatoriness, ultimately, notice was given to him on this ground to withdraw from the site of the works. He refused to do so, and in August, 1871, presented his petition of right, and then moved for the injunction in question. The injunction was denied.
Churchward v. The Queen (L. R., 1 Q.B., 173). The Lord Commissioners of the Admiralty, as agents of the Crown, entered into a contract with plaintiff that he should convey all the mails which would by the Commissioners, &c., “be required to be conveyed" between certain ports. Held, that this language did not imply an obligation to employ the Plaintiff to perform the service.
Held, also, that by the agreement to pay for the services a stipulated sum, out of monies to be provided by Parliament, there was no intention implied on the part of the Lords of the Admiralty to bind the Crown in the event of Parliament not providing the funds, and that consequently, the Petition of right founded upon a contract by Government officials, where there was no implied covenant to employ the contractor, was not maintainable against the Crown upon a refusal of the officials to employ him.
Neither is a servant or agent of the Crown personally responsible for the performance of a contract he has made on behalf of the Crown. Gidley v. Lord Palmerston (3 Brod. & Bing. 275; 7 Moore 91).
In Canterbury v. The Queen (7 Jur., part. 1 p. 224), which was a Petition of right in which petitioner claimed compensation from the Crown for damage done to his property by a fire caused by the
negligence of the servants of the Crown—held, that a petition of right
does not lie to recover compensation from the Crown for damage due to the negligence of the servants of the Crown, they alone are responsible. ,
Robertson v. Dumaresq (2 Moore's P. C., N. S. 66), which
came before the Supreme Court of New South Wales, in an action against the Government of that Colony, (the nominal defendant representing the Government) by an army officer having a claim against the