Manoel Francisco Lop... v. Lieut. Godolphin Jam...

IV MOORE, 300 LOPEZ v, BURSLEM p843- j

and they took no judicial step until tbe month of July fallowing; and between the

16th of July and the 12th of August, if they had made the usual applications to

the officers who s u p e r ~ ~ i t e n ~ these n~atters, we have no doubt a t all that there would

have been a reference by the Queozi in Council to the Judicial Committee before the

year expired. It seems to us, therefore, that they themselves are to blame if there

i s any hardship, However that rnay be, their Lordships are of opinion that the

Act of Parliament has imposed a condition which has not been complied with, and

that, therefore, the appeal cannot be prosecuted. It is not, however, a case for costs.

(See next case.)

[Mews' Dig. tit. COLONY, 111. QPPBALS TO hrw CIOUNGIL, 6. Practice, a. On p i n t

(i,) as to right to begin (4 Moo. P.C. 52921, cf. ~ e ~ ~ f ~ " e ~ v. ~ e ~ ~ f ? . e ~ , 1842, 4 Moo.

P.C. 29 ; (ii.) as to appeals to E X in Council, see note to ilzbuter v. Chipchase,

1536, 1 Moo. P.C. 3, a. 29 of 5 &o. IV. c. 113, is repealed by the Slave Trade

C o n s ~ ~ ~ d a t ~ o n Act 1873 (36 and ST Vict. c. SS).]

[36)03 ON P l ~ O T ~ S ~ A ~ ~ I ~ S T AX APPEXL FROM THE ~ ~ C E - A ~ ~ ~ ~ A ~ T ~

COURT AT SIERRE LEONE.

~~~~0~~ F R A ~ C ~ ~ C ~ LOPEZ, and O t ~ e r s , - ~ ~ ~ e ~ ~ ~ ~ ~ s ; ~ I U T . G~~~~~~~~

J ~ ~ ~ ~ S BURSLEMJ the Officers and Crew of Eer Xajesty's Ship VIPER,

and the ~ ~ E ~ ~ , - ~ e s ~ o ~ ~ e ~ ~ s * LNov. 25 and 29, l543].

Tlie Ship GUXAXA.

The 5th (;eo. IT., c. 113 (the Slave Abolitio~i act), see. 29, enacts that no appeals

shall be prosecatad from any senteiice of any Court of Admiralty or Vice-

A d m i r ~ l ~ y (except in any ~ ~ c e - A d ~ ~ ~ . a l t ~ Court at the Cape of Good Hope,

or to the eastnrard thereof), tinless an Inhibition be applied for and decreed

within twelve months from the time of the decree or sentence being pro-

~ ~ ~ u ~ ~ ~ e d . Held to apply to foreigners as well as British subjects [4 Moo.

P.C. 305J

Protest against an appeal sustained ; the Appellants (Brazilian subjects), the

owners of the cargo on board a vesuel scized and condenined under the 5th

Geo. IT., c. 113, having failed to procure an Inhibition to issue within twelve

months from the date of the eonde~~~nation,

The British ~ a r l i a ~ e ~ t have no power to legislate for f o r e i ~ ~ ~ e r s out of the

dominions and beyond the juri$~iction of the Cromn; yet it can by Statute

fir the time xithin whieli ~pplicati#n must, be made for redress, to the

tribunals of the Empire. This being matter of procedure, becomes tho law

of the f omm, by which all mankind are bound E4 Moo. P.C. 3051.

The facts of this case, so. f a r as the Owners of the vessel G ~ ~ B C L were concerned,

are fully dotailed in the preceding cas0. The present appeal difiered in no respect

from the former, except that it was the appeal of the owners of the cargo laden on

board the vessel, E3011 and seized and condemned therewith, who were Brazilian

subjects.?

Present : The Lord ~ a n g d a ~ e ~ Lord ~ a n ~ ~ b e l l , the ~ ~ i c ~ ~ ~ i ~ n c e l l o r Knight

Bruce, and the Right Hon. Dr. L ~ ~ s ~ ~ i i i g t o ~ i .

0 In pursuance of the 6th and 7th Vic., chap. 38, s. 1, which enacted that appeals,

etc., might be beard by not less than three Menibers of the Judicial C o m ~ ~ t t e e of the

Privy Council, under a special order of Her Eajesty, the following Order in Council

was made in this case : -

'' ~ ~ C ~ o ~ ~ A 12.

"J"ictoria, by the Grace of God, of the United Kingdoin of Great Britain and

Ireland, Queen, Defender of the Faith, eic. To our trusty and we~l~eloved James,

318

LOPEZ v. B U R S ~ ~ ~ I [1843] Iv EOORE, so2

The Eespondents, as in the precediiig case, appeared under Protest of the 29th

section of 5 Geo. IT., c. 113, [302] the Appellants not having procured an Inhibition

to issue within twelve month& after the condemnation pronounced by the Adnliralty

Court a t Sierra Leone.

The question raised by the Protest againkt the right to appeal, and argued,

was whether the Appellants, the owners of the cargo on b a r d the Guknar, being

Brazilian subjects, and the vessel captured a t sea, were amonable to the provisions

of the Statute 5 Geo. IV., chap, 113. The Appellants contended that they were

amenable only to the treaties entered into between this country and the B r a d s for

the suppression of the Slave Trade, and that, consequently, the Vice-Adnziralty

Court a t Sierra Leone had no jurisdiction under the Statute to have made any decree

whatever in that cause, so fa r as concerned the cargo; but that if any breach o f

treaty had been coniinitted, it should have been referred to the British and Brazilian

mixed Co~miss ion Court a t Sierra Leone, as the tribunal specially [303] appointed

and provided for that purpose. The Respondents submitted that the suggested dis-

tinction betveen the present appeal, being that of the cargo, and the case of the brig

Gzciana, decided against in the previous appeal, was not such a distinction as to

warrant any difference of Judgment in the two appeals.

Mr. Thesiger, Q.C., and Dr. Addams, in support of the Protest, and

Mr. Burge, Q.C., and Dr. Phillimore, for the Appeal, relied upon the following

authorities: The Le Louis (2 Dobson, 210); The1 HeicuCes (2 Dobson, 353); The

Lord WharncliB’e, the Lord Preaiderit of our Privy Council, and to our trusty and

weIlbeloved Privy Councillors, being Members of the Judicial Committee of our

Privy Courrcil. Thereas by an Act passed in the present year of our Reign, in-

tituled, ‘ An Act to make further Regulations for facilitating the hearing of appeals

and other matters by tlie Judicial Committee of the Privy Council,’ it was amongst

other things enacted, ‘ That in any appeal, a~p l i ca t io~ i for ~ r o ~ o n g a ~ i o n or confirnia-

tion of Letters Patent, or other matter referred, or hereafter to be referred, by Rer

Majesty in Council to the Judicial Comniitiee of the Priry Council, it shnlI be lawful

for Her Majesty, by Order in Council, or special direction under Her Royal Sign

Manual, having regard to the nature of the said appeal or other matter, and in

respect of the same, not requiring the presence of inore than three Meinbcrs of the

said Committee, to order that the same be heard, and when so ordered i t shall be

lawful that the same shall be accordingly heard by not less than three of the

Members of the said Judicial Committee, subject to such other rules as are applicable,

or, under this Act, niay be applicable, to the hearing and niaking Report of appeals

and other matters by four or more of the Members of tlie said Judicial Conmiittee :’

Now know ye, that we, reposing great trust and confidence in your knowledge and

integrity, have ordered, and do by these presents order, pursuant to the powers

vested in us by the said recited Act, that the matter of a certain appeal froin a

decree o f the ~ i c ~ A d ~ i r a l t y Court at Sierra Leone, touching the seizure and con-

de~na t io i i of the ship G~~~~~ and cargo, be accordingly heard by not less than three

of you, being Members of the Judicial Committee of our Privy Council, subject to

such rules as are applicable to the hearing and making report on appeals and other

matters by four or niore of the Members of the Judicial Committee of our Privy

Council.

(‘ Given at our Court at Windsor, the 4th day of August, in the seventh year of

our Reign.

___ - _--

‘‘ By Her Majesty’s Command,

“J. GRABAM.”

Upon the above Order in Council being read,

Lord Brougham (5th August 1843 *) observed, that it was to be distinctly under-

stood, that the late Act, 6th and 7th Vie., c. 38, which was now f o r the first .time

brought into operation, is only applicable to matters of inferior importance. There

niust be an Order in each case.

The Order was however not acted 011, the cause as above stated being s~ibsequent l~

heard by four Nenibers of the Judicial Committee. [S. 1 of 6 and 7 Vict., e. 38,

was repealed by the Statute Law Revision Act, 1891 (54 and 55 TTict,, e. 67).]

* Present : Lord Brougham, Lord Campbell, and the Right Hon. Dr. Lushington.

319

IV ~OORE, 3w; LOPEZ 2'. BUKSLEM [I8431

Fa&iws (2 Rob. Adm. 245); The Cnrelll aiid Hnydalena (3 Eob. Adrn. 58); The

cam&^ (2 Xoore's P.C. Cases, 15).

Lord Ca~pbel~.-This is an appeal by certain persons, alleged to be ~ r a z i ~ i a n

subjects, and owners of the cargo laden on board the British ship G u k ~ m , against

a sentence of the Vice-Admiralty Court a t Sierra Leone, by which that ship was

condemned as forfeited, for being engaged in the Slave Trade, contrary to the

provisions of the Statute 5 Geo. IV., o. 113, and the shippers of the goods on board

were found liable to the penalty of double the value thereof.

An objection has been made that the appeal cannot be received, on the ground

that the condition imposed by the 29th section of that Act, respecting the prosecution

of appeals, has not been complied with ; and [304] the only question now to be de-

cided i s , whether the appeal can be received.

I need not say that their Lordships must lean strongly against any such objection,

and that it would be particularly satisfactory to them that the Appellants should be

heard against the sentence in this case. as they are said to be foreigners. But we

can only, to the best of our ability, put a construction on the Statute by which our

jurjsdiction i s regulated; and if it appears to us that this Statute forbids us to

receke the appeal, we are bound, however r e l u c t a ~ ~ t l ~ , to dismiss it.

The Statute 5 Geo. IV., e. 113, was passed to consolidate the Acts relating to the

abolition of the Slave Trade ; and the 29th section enacts that '( no appeals shall be

prosecuted Prom any decree or sentence of any Court of Ad~niralty or Vice-

Admiralty, touching any of the matters provided for in this Act, unless the Inhibi-

tion shall be applied for and decreed within twelve months froin the time when such

decree or sentence was pronounced, except where such decree or sentence shall be

passed in any Vice-Admiralty Court a t the Cape of Good Hope, or to the eastward

thereof, in which case eighteen months shaIl be alfowed for the p rosec~~ t~on of the

said appeal.'>

In this case the sentence was pronounced by the Vice-Admiralty Court a t Sierra

Leone, on the 17th of August 1840, and the Inhibition was not decreed till the 3rd

of September 1841.

Their ~ o r d s ~ i p s have already decided that for this reason the owners of the

ships were not entitled to prosecute their appeal. The Counsel for the owners of the

cargo have attempted to distinguish their case froni E3051 that of the owners of the

ship, on several grounds; but I regret to say, that their Lordships, after great

de l ib~r~~ t ioy~ , t,liinlcthat the cases are not disti~iguishable, and that the former deci-

sion (to which they adhere) must govern the present.

In the fimt place, it is contended that the owners of the cargo are not bound by

the enactment, because they are foreipers. The British Parliament certainly has

no general power to legislate for foreigners out of the dominions and beyond the

j ~ i r ~ s d i c t ~ o n of the British Crown, but i t cannot be doubted for a moment that a

~ r ~ t i s h Statute may f i x a time within which a p p l ~ c a t i ~ n must be made for redress

to the tribunals of the empire. This is matter of procedure, and becomes the law

of the forum. On matter of procedure, all mankind, whether aliens or liege sub-

jects, p ~ a i n t i ~ s or defendants, ~ppellaiits or respondents, are bound by the lam of

the ~ o r ~ n ' . If a law were made upon this subject, working oppression and in-

justice to the subjects of a foreign State, tlmt State niighs rx.lake repr~sei~tations

and rei~ionstrances against this law to our Government; but while i t remains in

force, JudgeN ham no choice but to give it effect. Had it been s h o m to us ever so

clearly, that, in this case the conait~on required could not have been c o ~ i p ~ i e d with,

i f it has clearly, a b s o ~ u ~ l ~ , and universally been imposed, we should have no power

to dispense with it. At the same time, it i s a great consolation to us to consider,

that the enactment in question leaves ample time for the effectual prosecution of

such an appcal, and that it may well be defended on the principles on which there

are laws of prescription in all civilized countries, fixing the time witbin which suits

shall be commenced, or appeals prosecuted. In the present case, nothing 13061 has

been said of the circumstances which led to the delay in decreeing the Inhibition;

but in the fornier case, it appeared that the delay mainly arose from the laches of

the agents of the Appellants in riot sooner taking the proper steps for obtaining it.

The A p p ~ l ~ a ~ ~ t s , as owners of GI10 goods, must rely upon a part of the sentence,

by which it i s dedared that the goods shall be held in deposit, till the penalty i s paid.

3 20

This, they contend, is contrary to the Act o f Parliament, therefore hot pro.iided f o r

in the Act ; and, therefore, they say it entirely takes the case out of the operation of

the 29th section. But the quation at present is, no t whether the sentence is justified

by the Act, but whether it touches any of the matters provided for in tha Act. BOW,

the 4th section of the Act provides, that a ship employed in the Slave Trade shall ba

forfeited; and the 7th section provides, that the shippers of goods to be employed

in the Slave Trade shall forfeit double the value. The sentence below finds that the

Quiuna, at. the time of her seizure, vas employed in the Slave Trade, contrary to the

provisions of the 5th Geo. IV., c. 113, and condemns her as forfeited, and pronounces

that the shippers of the goods on board are liable to the penalty of double

the value of the said goods, as the penalty due by law; and that the

goods shall be held in deposit till the pendty is paid. ~ ~ ~ e t h c r this sen-

tence be or be not according to the Act, a m the Appellants justified in sayiiig that it

i s not a sentence touching any of the matters provided for in tile Act$ The Judge

of the ViceAdmiralty Court ma.>- be mistaken in supposing that a lien could be

claimed on the goods for the penalty; but can it be successfully contended, that

the remedy for the penalty on the goods, in respect of [3011 which the penalty was

incurred, was not a matter touching the penalty and the goods? Are we th, have it.

previous a r ~ ~ I m e n t , AS to whether this part of the sentence ought to be reversed

before we decide whether the appeal can be henrd? The construction of the clause of

limitation contended for by the Appellant, w.vould render it perfectly nugatory ; for

in every case it might be contended that tho clause does not apply, if the sentence be

erroneous; and the sufficiency of the sentence would be argued and determined on

the Protest against receiving the appeal. If, indeed. the sentence contained a sepa-

rate and distinct matter, not touching any of the provisions of the Act, although i L

did contaiii otfier matter touching those previsions ; we think the clause mould no$

apply to the sentence so fa r as the former matter is concerned, and that, pro tanto,

the appeal might be received, although the condition aborit the decreeing of the

Inhibition had not been complied with; but we cannot consider that the holding of

the goods in deposit for the penalty is any such separate and distinct matter, and wa

make no doubt that it> touches the penalty which the Act imposes. If this part of the

sentence is utterly void, as contended for, the p o d s cannot be lawfully detained for

the penalty, and the question may perhaps be tried in an action of trover, or for

money had and received. Their Lordships think that i t cannot be tried on this

appeal. oither alleged as a substantive ground for reversing the sentence, or as a

ground for receiving the appeal. We know, by experience in this place, that the

sentences of the Vice-Admiralty Courts are often very informal, and it would be most

perilous to captors and seizors, if such informalities might be taken ad-[308]-van-

tage of, by appeal, a t any distance of tirx~e. I t was probably to guard against this,

that the Legislature has anxiously made the limitation as to the time of appealing

to apply in language so com~rehensive to all sentences touching any of the matters

provided for by the Act ; and we are of opinion, that we should by no means be justi-

fied in putting a constrmtion upoii it, which would entirely defeat its objecl.

It was further argued, that the Vice-Admiralty Court at Sierra Leone had no

jurisdiction in this case, and that we ough;llc, therefore, ti, re-versr the appeal; and,

indeed, it was said me ought a t once to reverse the sentence, or to declare it nrrll. I

did not exactly understand how we were to co~lle to the conclusion that the Vice

AdmiraIty Court, had no jurisdictiori over this British ship for an infraction of the

British Statute, or bow the case could have been brought before the mixed British

and Brazilian Commission. But the Appellants do not deny that there are sup-

posable facts which mould give the Vice-Admiralty Court at Sierra Leone jurisdic-

tion over the whole case, and till the appeal is received and heard, how can we know

that these facts did not actually exist, and were not the foundation of the sentence!

But suppose that a total want of jurisdiction were established, the clause of liixita,.

tion is not applied t o sentences of Courts attifig ?&&z the&- ju@-~s&et

sentence, if i t were pronounced by a Court not having jurisdiction, would not the

less the sentence of a Vice-Admiralty Court, touching matters provided for by the

Slave Trade Abolition Act.

A number of caees mere cited to us, showing That that great Judge, Lord

Stowell, had said and done [309] when he had to review sentences of Vice-Admiralty

Courts, bad for want of jurisdiction ; but all these cases were regularly before him,

P.C. 11. 321 I t

MOORE, 310 LOPEZ ?I. B ~ ~ ~ ~ E ~ ~ [I8431

upon an appeal duly brought and prosecuted, and in none of them did the question

arise which we have to decide, whether the appeal ought to be admitted upoii the con-

struction of an Act of Parliament for limiting the time for appealing. I appre-

hend, therefore, that in this stage of the proceedings, the argument arising from a

supposed w n t of jurisdiction in the superior Court inust be quite unavailing.

In the pardonable excess of a very laudable zeal, a power was imputed to this

Court, which the learned Counsel for the Appellants o n reflection must be aware does

not belong t o us. It was said that as a supreme tribunal, acting on the law of

nations, we were t o remedy all the grievances of foreigners, arising from the acts

of Colonial Courts, which may in any shape be brought before us. But in reality,

we are nom sitting merely as a Court of Appeal. from a Vice-Admiralty Court-

strictly bound by Acts of Parliament, as much as the lowest Court of Justice in the

kingdom. We cannot reverse or alter a sentence till it is regularly before us on

appeal, and we cannot receive an appeal if, as in the present case, a pre-i TlOUS con-

dition prescribed by the Legislature has not been coniplied with.

I, for one, &auld have been -11-ell pleased if an attempt \%hick was made in tlie last

session of Parliament, to allow this appeal to be heard by altering. the law for these

particular Appellants, had succeeded. A clause in a Bill for this purpose passed

one House of the Legislature without opposition, but [310] was not approved of by

the other,” on the ground, as I was informed, that on inquiry i t was found that if

the agents employed had done their duty, the Inhibition might easily have been

obtained in due time. But however that may be, the general law stands unaltered,

and upon the just construction of that law their Lordships are of opinion that the

appeal cannot be received. They will therefore humbly recommend to Her Majesty

in CounciI that the appeal should be dismissed, as prayed by the Respondents.

[Mews’ Dig. tit. ~ A R L ~ A M E ~ T , A. INTERNAL M ~ ~ ~ A G ~ ~ f E ~ T , 2. Powers O f . S.C. 4

St. Tr. (H.S.) 1331. On point (i) as to appeals to E M . in council, see note to

Mute? v. C ~ i ~ c ~ z a s e , 1836, 1 Moo. P.C. 3 ; and see Lorfa* v. ~ u r s l e ~ , 4 Moo.

---

P.C. 254; (ii) as to exterritorial legislation and application of English law,

see Jefei-ys v. Boosey, 1854, 4 H.L.C. 815 ; 4fnrTeod v. A.-G. of L%vew South v a l e s

(1891), A.C. 455 ; Forsyth’s Cas. Const. Law, 23s ; Ilbert, Government of India,

410 ; Archbolds Cqam. PI. 22nd Ed. pp. 3$ e t sry.: (iii.) as to lex fori, see note

to Ruckmaboyl v. .44ottiehurnd, 1852-1, 8 Moo. P.C. 41; and Forsytb’s Cas.

Consf. ~ W J , 249.1

I--____ _____I__ - __l_--- - ~

* After the decision in the appeal of Logan v. Burslem, (ante [4 Moo. P.C.],

p. 284), a Bill intituled, ‘‘ An Act to make further regulations for facilitating and

hearing appeals and other matters by the Judicial Committee of the Privy Council,”

was brought in the House of Lords. By see. IK of this Bill it was enacted, ‘‘ That in

all cases wherein a petition shall have been heretofore lodged as aforesaid, but the

usual ~ ~ i h i b ~ t ~ o n and Cfixation shall not have been decred within the aforesaid re-

spective periods, the Judicial C ~ n i n ~ i t ~ ~ and tlieir Surrogates shall have full power

to proceed, and the said Zudicial Conmiittee shall report, and Ker Majmty shall

adjudge on such report, in like manner and as if the said Inhibition and Citation

had been decreed within the aforesaid respective periods, notwithstanding any Pro-

test entered into or determined upon by the said Judicial Committee.”

When the Bill was sent down to the House of Commons, a Select Committee was

appointed by that House “ to inquire into the facts attending the delay in extracting

the Inhibition in the case of the ship Guicrna, and dismissal of the appeal, in the said

case, by the Judicial Committee of the Privy Council.” The Select Committee,

after examining witnesses, reported to the House that there did not appear sufficient

grounds to sustain the above section (whieh had been imported into the Bill t o meet

the exigency of tlie case of the Guiann). The section was accordingly struck out of

the Bill (see 6th and 7th Vic., chap. 38).

322