An Act for the Abolition of the present Court of King’s Bench and Grand Sessions; to substitute a Court of King’s Bench in lieu thereof; and to extend to Slaves the benefit of Trial therein, in cases of a higher nature than Misdemeanors.

TOBAGO:—An Act for the Abolition of the present Court of King’s Bench and Grand Sessions; to substitute a Court of King’s Bench in lieu thereof; and to extend to Slaves the benefit of Trial therein, in cases of a higher nature than Misdemeanors.

WHEREAS the court, commonly called “the Court of King’s Bench and Grand Sessions for Tobago,” established by a certain Act bearing date or passed on or about the [blank] day of [blank] which was in the year of our Lord one thousand seven hundred and [blank] intituled “An Act for establishing Courts of Common Pleas, Error, King’s Bench and Grand Sessions; for the better regulating and settling methods for the administration of Justice; and for the more effectual support of Credit and which said Act was revived by a certain other Act passed on or about the twenty-first day of February, in the year of our Lord one thousand seven hundred and ninety-four, intituled “An Act to revive and put in force certain Acts heretofore enacted by former Legislatures of this Island, and now expired; and for giving further effect to the proceedings of the Court of Chan­cery and Common Law, and the Courts of Vice-admiralty and Ordinary of the said Island,” is found ill adapted to the present state and circumstances of the colony, and it is expedient that the same be abolished, and another court of King’s Bench, differently constituted, be substituted in lieu thereof, and that the benefit of a trial in such substituted court be extended to slaves in all cases of a higher nature than misdemeanors: We, therefore, your Majesty’s most dutiful and loyal subjects, his Excellency Major-general Nathaniel Blackwell, Companion of the most honour­able military order of the Bath, Captain-general and Governor-in-chief in and over the island of Tobago and its dependencies; the Council and General Assembly of the same; do humbly pray Your Most Excellent Majesty that it may be enacted, and be it and it is hereby enacted by the said Nathaniel Blackwell, by and with the advice and consent of the said Council and General Assembly in Session assembled, and by the authority of the same, that so much of the hereinbefore mentioned Act, intituled "An Act for establishing Courts of Common Pleas, Error, King’s Bench and Grand Sessions; for the better regulating and settling methods for the admi­nistration of Justice; and for the more effectual support of Credit,” as relates to the establishment of the said court of King’s Bench and Grand Sessions, shall be and [80] is hereby, from and after the passing of this Act, repealed, annulled and rendered of none effect.

And be it, and it is hereby further enacted by the authority aforesaid, that the chief justice of His Majesty’s court of Common Pleas of this island for the time being, and two puisne justices to he from time to time appointed in the name and behalf of His Majesty, by his Excellency the Governor or Commander-in-chief for the time being, by letters patent under the great seal of the island, during their good behaviour and residence in the said island, and whose patents shall run in the fol­lowing form, or as near thereto as may be:

“Tobago:—George the Fourth, by the grace of God, of the United Kingdom of Great Britain and Ireland King, Defender of the Faith, and so forth.

“To all to whom these presents shall come, greeting:—Know ye, that we have constituted, appointed and assigned, and by these presents do constitute, appoint and assign, [blank] of our said island, esquire, one of our justices to

hold pleas in our court of King’s Bench in our said island, during his good beha­viour and residence in our said island. In testimony whereof, we have caused these our letters to be made patent under our great seal of our said island. Witness [blank] at [blank] this day of [blank] in the [blank] year of our reign, and in the year of Our Lord one thousand eight hundred and [blank]”

shall be and are hereby constituted a court of record, whereof the style shall be “the Court of King’s Bench for the Island of Tabago:" provided always, that nothing herein contained shall be construed to require the presence of the said chief justice of the said court of Common Pleas and of the said puisne justices together to form a court of King’s Bench, but any one or more of these shall constitute a court; and it shall and may be lawful for any one or more of these to sit as a court at any one time, and the proceedings before any such justice or justices shall be as valid and effectual as if had and done in the presence of the whole.

And be it and it is hereby further enacted by the authority aforesaid, that the said chief justice of the court of Common Pleas for the time being shall be also chief justice of the court of King’s Bench hereby established; and the said chief and other justices, and each of them, shall, before acting in the court hereby established, make and take the following oath, which each of the said justices is hereby authorized to administer to the other of them, to wit:

“I, A. B. do swear, that I will do impartial justice, according to law, between the King and his subjects, as one of His Majesty’s justices of the court of King’s Bench for this island, without favour, affection or partiality. So help me God.”

Provided always, that if any time there shall only be one judge in the said court, so that one other justice of the said court cannot administer the said oath to him, then it shall be lawful for him to make and take the said oath before any one of the justices of His Majesty’s court of Common Pleas.

And be it and it is hereby further enacted by the authority aforesaid, that the colonial secretary or clerk of the Crown, and the provost-marshal for the time being, shall respectively be secretary or clerk of the Crown and provost-marshal to the court of King’s Bench hereby established, in such manner as they were respectively secretary or clerk of the Crown and provost-marshal to the court of King’s Bench and grand sessions hereby abolished; and that they respectively, and all peace officers in the said island, shall be attendant upon and ministerial to the court hereby erected, and the said provost-marshal shall at all times cause a sufficient number of cryers and other officers to attend when business is transacted in the said court.

And be it and it is hereby further enacted by the authority aforesaid, that the chief justice, or in his absence the next senior assistant justice of the court of King’s Bench, shall be the keeper of the records of the said court, and all process and other documents required to be tested shall bear test in his name, and shall be sealed with such seal, bearing such devise, as it shall from time to time please His most gracious Majesty by an order in council to appoint and direct, and such seal shall be retained in the custody of the said chief or next senior assistant justice for the purposes aforesaid and none other: provided always, that until such time as His Majesty shall be pleased to signify his royal pleasure in that behalf, it shall and may be lawful to and for such chief or next senior assistant justice to use his private seal at arms for [81] the purposes aforesaid, or such seal as hath been heretofore used by the court hereby abolished.

And be it and it is hereby further enacted by the authority aforesaid, that the chief and other the justices of the court hereby erected, shall be removable by the Governor or Commander-in-chief for the time being from the said court, by writ of discharge under the great seal of the said island, and duly recorded in the said court, issued by such Governor or Commander-in-chief for the time being, in pursuance of the address of one or both houses of the legislature presented to him for that purpose, or in consequence of misbehaviour on the part of such chief or other justice duly adjudged on a writ of scire facias, and not otherwise: And be it further enacted, that it shall from time to time be lawful to and for the Governor or Commander-in-chief for the time being, by and with the advice of the Privy Council of the said island, as there shall be fitting cause, to grant leave of absence to such chief or other justice for any period not exceeding one twelvemonth at any one time; and to cause the great seal of this island to be affixed to such leave of absence, and the same to be recorded in the said court of King’s Bench, that it may thereby appear who is the next senior assistant justice of the said court; and the patent or commission of such chief or other justice so departing with such leave shall not be thereby vacated during the period of such leave, anything in the said patent to the contrary notwithstanding: and provided always, that it shall and may be lawful, on good cause shown, to and for the Governor or Commander-in-chief for the time being, by and with the advice of His Majesty’s Privy Council of the said island, or to and for His Majesty’s Principal Secretary of State having the department of the Colonies for the time being, on the like cause shown, to extend such leave of absence for a year, to any period not exceeding six months over and above the said year; and in case such extended leave shall be given by the Governor in Privy Council in Tobago, then it shall be duly recorded in the said court hereby established, immediately; and if granted by His Majesty’s Principal Secretary of State having the department of the Colonies in England, then the same shall be in like manner duly recorded in the said court when the same shall be transmitted to this island, or within a reasonable time thereafter.

And be it and it is hereby further enacted by the authority aforesaid, that it shall and may be lawful to and for the said court hereby established to hold all pleas criminal or pleas of the Crown, but not pleas real, personal, or mixed; and that no particular commission, other than the commission of the chief justice of the court of Common Pleas, as such chief justice, and the hereinbefore recited patents of the puisne justices of the court hereby constituted, shall be necessary for holding the said -court and appointing justices thereof: but the justices thereof shall be and are hereby authorized and enabled to act in all pleas criminal, or of the Crown, by virtue of this Act, without further writ, commission or authority; and that the law whereby the proceedings of the said court shall be regulated shall be the common law of this island, the common law of England, the statute law of this island, now or hereafter to be in force, and the statute law of England and of the United Kingdom of Great Britain, as the same exists, or existed, by statute passed on or before the last day of the session of the Parliament of the United Kingdom of Great Britain and Ireland, held in the ninth year of the reign of His present Majesty, and as each of these several laws are modified by the other of them; and the said court shall have full power to hear, judge, determine and execute in all offences and criminal matters arising within this island and its depen­dencies, from high treason to the lowest misdemeanor (both inclusive), as the court of King’s Bench in that part of the United Kingdom of Great Britain and Ireland called England hath in England, and as justices of oyer and terminer and general gaol delivery in England, in their sessions, have there by law; and shall have full power to inquire of such offences and every of them by the oaths of good and law­ful men of the said island, and on indictment found or presentment made, the trial of such offence or offences, if it be denied by the offender or offenders, shall be by twelve good and lawful men of the said island, and the practice of the said court shall be as nearly as may be conformable to the practice established and used in the court of King’s Bench in England: provided always, that no conviction for any offence shall induce any forfeiture of goods and chattels, other than such fine as shall be imposed by the said court; nor shall any attainder cause any forfeiture of lands, tenements or hereditaments, nor occasion any corruption of blood, any law, usage or custom to the contrary in anywise notwithstanding.  

And whereas it is expedient to continue to slaves the benefit of a trial by a full jury in the cases in which the same has been heretofore usual; be it therefore and it [82] is hereby further enacted by the authority aforesaid, that all slaves accused of felonies or offences of a higher nature than misdemeanors shall be tried therefore in the court hereby established.

And be it and it is hereby further enacted by the authority aforesaid, that the receiving of stolen goods by slaves shall in all cases be a misdemeanor, and shall be tried by the court by this Act established, and shall be punished as a misdemeanor at common law, to which the court shall have the power to add corporal punishment, at their discretion, according to the nature of the offence, anything in this Act, or any law, usage or custom to the contrary hereof in anywise notwithstanding.

And be it and it is hereby further enacted by the authority aforesaid, that in all prosecutions in the court hereby established, it shall and may be lawful to and for the prisoner or defendant, of whatever nature such prosecution may be, to make his full defence thereto as well in matter of fact as in matter of law, and examination of witnesses, in his own person, or by one or more counsel, or both by himself and his counsel; any law, custom or usage to the contrary in anywise notwithstanding.

And be it and it is hereby further enacted by the authority aforesaid, that when­ever any person prosecuting in the name of His Majesty, in the court hereby esta­blished, shall conceive that such his prosecution shall concern the general adminis­tration of the justice of the country, and shall be conducive to the interests thereof, it shall be competent to him, either by himself or his counsel, within a reasonable time after the judgment pronounced in such prosecution, to move the court to grant a certificate thereof (which certificate may be signed in or out of court); and if the court, on such application, shall certify to the effect aforementioned, then and in that case the prosecutor shall cause the costs of such prosecution to be taxed by the secretary or clerk of the Crown, from whose taxation an appeal shall lie to the court, and on production to the Governor or Commander-in-chief for the time being in Council of such certificate and bill of taxed costs, such prosecutor shall be entitled to receive a warrant, directed to the public treasurer or his lawful deputy, for pay­ment of the amount thereof, out of the fund that shall from time to time be appro­priated to such service by any Act of Supply or Appropriation Act hereafter to be passed: provided always, that nothing in this Act shall prevent the law officers of the Crown, or other counsel employed by the Crown, from receiving their fees of and from the public for any prosecution, without any such certificate as is herein­before mentioned, when such prosecution shall be instituted by direction in writing from the Governor or Commander-in-chief for the time being.

And whereas it may happen that slaves may be prosecuted in the court hereby established, whose owners, or the persons having charge of them, may be in such indigent circumstances as not to admit of their employing counsel in behalf of such slaves so prosecuted; be it therefore and it is hereby further enacted by the autho­rity aforesaid, that ten days before any session of the court hereby established, and in case the slave shall not have been committed or bailed ten days before the session, then as many days as the case will admit of before the session, the counsel prosecuting in the name of the Crown shall give notice to the court of all his intended prosecutions against slaves, and it shall be competent for such slaves or their owners (and herein the provost-marshal is required to be assistant to slaves in gaol) to make it appear to the court in a summary manner, by affidavit or other­wise, that the owner or person having charge of such slave is unable to employ counsel for his defence, and in that case it shall be lawful for the court to assign such counsel as they shall deem fit for the defence of such slave, and such counsel shall receive payment in manner pointed out for payment of the costs of prosecu­tions in the next preceding clause of this Act; and the want of sufficient time for the instruction of counsel shall be, at the discretion of the court, a reasonable cause for putting off the trial of such prosecution to the next subsequent session of the court.

And be it and it is hereby further enacted by the authority aforesaid, that the court hereby established shall have two sessions at the court-house in the town of Scarborough, in each and every year, to wit, on the first Tuesday in the month of April, and the first Tuesday in the month of October; the first sessions to be held on the first Tuesday in the month of October next ensuing; and the said court shall have full power and authority to adjourn from time to time for such periods as it shall think fit, and also to sit at any period of the year for the dispatch of business falling within their jurisdiction, notwithstanding the same may not fall within the sessions hereby appointed, or any adjourned session: provided always, that when any offence or offences shall be committed or discovered which the Governor or Commander-in-chief for the time being, by and with the advice of the [83] Privy Council, shall deem to require speedier trial than at the next session hereby appointed, it shall and may be lawful for him, by any instrument under the great seal, to direct the said court to proceed to the trial thereof, and such instrument shall be full authority to the said court to try all offences, to deliver all gaols, and to do all the matters and things within their jurisdiction under this Act, as fully and amply as if all offenders and offences were specially or generally named and enumerated in special or general commissions for those purposes; and it shall and may be lawful for the said court then to try all other offenders and offences, though such offenders or offences were not the immediate cause of holding the said court at that time, and the clerk of the Crown, secretary, provost-marshal, and all other officers required to be attendant on and ministerial to the said court, shall on such occasions do, perform and execute all such matters and things as to their respective office or offices pertain to be done, performed and executed.

And be it and it is hereby further enacted by the authority aforesaid, that the court hereby established shall and may proceed to hear, determine, order, direct and finish any indictment, presentment, process, or other matter or thing already begun by the court by this Act abrogated; and all persons standing bound over to prosecute, give evidence, appear, defend or otherwise in the court hereby abrogated, shall prosecute, give evidence, appear, defend or otherwise, on the first day of the ses­sion of the court hereby established, in the court hereby constituted, and their recog­nizances shall be in no wise vacated, but shall be deemed and taken as recognizances to do and perform the several matters and things therein specified in the first day of the session of the court hereby established, in the said court; and it shall and may be lawful to and for the said court on such first day of their session to make such further order therein, and to continue such recognizances in such manner as the nature of the case may require, and to justice shall seem meet.

And be it and it is hereby further enacted by the authority aforesaid, that the justices of peace, coroners and other persons who shall take any depositions, inquests, recognizances or other instruments relating to pleas of the Crown, or to the peace, or to matters cognizable by the court hereby established, shall in all cases return the same to the clerk of the Crown four days before the holding of their sessions (the days of making the return and of holding the session being both reckoned as exclusive), and if taken within such four days, then as soon after the same was taken as conveniently may be; and that all persons having taken depositions, inquests and recognizances returnable into the secretary’s office or clerk of the Crowns office, not already returned, and which were to be proceeded upon in the court hereby abrogated, shall as speedily as may be after the passing hereof, return the same into the office of secretary or clerk of the Crown, and the clerk of the Crown shall produce all such instruments, whether returned to him prior to or after the passing hereof, to the court hereby established, on the first day of their session; and it shall and may be lawful to and for the said court to proceed thereon as if such depositions, inquests, recognizances and other instruments had been originally returnable into the court hereby established, and not into the court hereby abrogated, anything appearing in such depositions, inquests, recognizances and other instruments to the contrary hereof in anywise notwithstanding.

And be it and it is hereby further enacted by the authority aforesaid, that at the conclusion of every sessions held by the court by this Act established, the secretary or clerk of the Crown shall return to the court one complete extract of all recognizances forfeited and fines imposed at the court hereby established, and not paid down, or the party committed for such fines; and after due consideration thereof had, it shall and may be lawful to and for the said court by any instrument sealed with the seal of the said court, or until such seal shall be procured, sealed with the seal of the court hereby abrogated, or the seal of the chief, or in his absence of the next senior puisne justice of the court hereby established, to direct the attorney or solicitor-general for the time being, or any counsel to them seeming fit, to proceed by all lawful ways and means to recover such forfeited recognizances and fines as they shall think fit to be proceeded upon to the use of His Majesty, his heirs and successors, and to cause the same to be paid into the public treasury of this island in aid and support of the government thereof.

And be it and it is hereby further enacted by the authority aforesaid, that the clerk of the Crown or his lawful deputy shall, ten days at least before the sitting of the said court hereby established, issue out a writ or precept in the King’s name, which shall be tested to this effect, “Witness the chief or other justice of our court of King’s Bench hereto subscribing and sealing;" and the said clerk of the Crown or [84] his lawful deputy shall address himself to one of the. said justices then on the island, beginning according to their seniority, and shall get the said writ or precept signed, the purport whereof shall be to summon twenty-four grand jurors and thirty-six petty jurors, being freeholders, attornies, managers, chief overseers, merchants, merchants’ clerks and tradesmen, to serve at the next court of King’s Bench to be held on the [blank] day of [blank] the next ensuing (or instant), at the court-house in the town of Scarborough, and the provost-marshal or his lawful deputy shall publish the holding of the sessions in manner hereinafter prescribed.

And be it and it is hereby further enacted by the authority aforesaid, that the provost-marshal for the time being shall before each of the sessions of the court hereby established, give due notice of and publish the holding thereof at least ten days previous to the commencement of such session, in the public Gazette of this island, and if no Gazette shall then be published, shall affix such notice as aforesaid at the door-way of the public court-house in the town of Scarborough, that all per­sons may govern themselves accordingly.

And be it and it is hereby further enacted by the authority aforesaid, that the form of the summons of jurors shall be as follows, or as nearly similar thereto as circumstances will admit, viz.:

“Tobago:

“Mr. A. B., [or A. B., Esquire.]—These are in His Majesty’s name to require you to be and appear in your proper person at the court-house in the town of Scarborough, at the hour of [blank] in the forenoon of [blank] the [blank]

day of [blank] next ensuing [or instant], then and there to serve as a grand

or petty juror [distinguishing which in the summons] at the court of King’s Bench then and there to be holden; and hereof fail not at your peril.

            “A. B. Provost-marshal.”

Which summons shall be served personally, or by leaving it at the usual place of residence of the person summoned, at least four days (the day of summons and the of attendance being reckoned exclusively) previous to the day of the attendance therein mentioned.            

And whereas, by the Act in such case made and provided, the court of Common Pleas is required to sit on the first Tuesday in the month of April, and the jurors serving in the said court may well serve in the court hereby established; be it there­fore and it is hereby further enacted by the authority aforesaid, that the provost­marshal at the time he shall summon the twenty-four jurors required to be summoned for the court of Common Pleas in the month of April, shall also serve summonses such as in the last clause recited on the same persons; provided always that the provost-marshal shall only be entitled to charge for one service of both summonses on each of the twenty-four jurors aforesaid.

And whereas the sitting of the court of Common Pleas may occupy a large part of the day on the said first Tuesday in April, or may occupy more days than one; be it therefore and it is hereby further enacted by the authority aforesaid, that under the circumstances aforesaid the session of the court hereby established shall be deferred until it can conveniently be holden after the close or adjournment of the session of the court of Common Pleas; and in case the session of the court hereby established shall be deferred beyond the said first Tuesday in April, all writs, re­turns, subpoenas, recognizances, summonses, and all other matters and things what­soever, shall be as good and available for such deferred session as if the session had been actually holden on the said first Tuesday in April, anything in this Act, or in the said writs, returns, subpoenas, recognizances, summonses, and other mat­ters and things to the contrary hereof notwithstanding.

And be it and it is hereby further enacted by the authority aforesaid, that all persons concerned to prosecute or defend in the court hereby established, shall be entitled to take out such and so many subpoenas from the office of secretary or clerk of the Crown as to them shall seem fit, paying therefor and for the service thereof respectively, to the said clerk of the Crown and the provost-marshal, such fees as are respectively due to them for subpoenas of witnesses and service thereof issuing out of the court of Common Pleas; and any witness or witnesses neglecting or refusing to appear when duly summoned shall be guilty of a contempt of court, and be dealt with accordingly; and also be liable to the party injured by such non­appearance in damages.

[85]

And be it and it is hereby further enacted by the authority aforesaid, that all jurors, grand or petty, neglecting or refusing to appear when duly summoned, shall in like manner be guilty of a contempt of court, and be liable as in other cases of a contempt of court.

And whereas by a certain Act of this island, intituled “An Act to confirm the appointment of Way-wardens, made by the court of King’s Bench and grand sessions on the sixth day of October one thousand eight hundred and twenty-four, and to authorize the judges and justices of the court of King’s Bench and grand sessions to be holden in future in the month of October to make such appointment, and also to authorize the Way-wardens in the towns to adopt means of preventing the streets and lanes being injured,” and passed on or about the twenty-second day of Oc­tober, which was in the year of our Lord one thousand eight hundred and twenty- four, power is given to the court hereby abrogated to appoint way-wardens for the different parishes in this island in the manner and at the times therein specified : be it therefore and it is hereby further enacted by the authority aforesaid, that the court hereby established shall have the same or the like authority to appoint way­wardens, and regulate their conduct, as the court hereby abrogated had by the said Act, and shall have in all respects the same powers as if the style of the court hereby established were substituted in the said Act for the style of the court hereby abrogated, anything in the said Act to the contrary hereof in anywise notwith­standing; and further, that it shall and may be lawful to and for the court hereby established, from time to time to appoint such and so many constables as to them shall seem fit to serve for the body of this island.

And be it and it is hereby further enacted by the authority aforesaid, that the chief and puisne justices of the court hereby established shall respectively have at all times the same power and authority to take and admit to bail that the chief and puisne justices of the court of King’s Bench in England respectively have, either by statute or at common law.

And be it and it is hereby further enacted by the authority aforesaid, that the provost-marshal for the time being shall be and is hereby enjoined and required dili­gently to receive and collect all fines imposed by the court hereby established, and to discharge the party actually and bonâ fide paying the same (if not detained on other account than such fine), and from time to time to account with the public treasurer of this island or his lawful deputy for all fines which he shall receive, and immediately to pay the balance, after the deduction hereunder mentioned, into the hands of the said public treasurer or his lawful deputy; and the provost-marshal shall be entitled to deduct and retain to his own use five per centum on all fines he shall collect by virtue of the judgment of the court by this Act established, and pay into the hands of the public treasurer or his lawful deputy, without action, suit or compulsory process of law; and all fines collected under this Act shall be and enure to the use of His Majesty, his heirs and successors, for the public services of the colony.

Passed the House of General Assembly, this 11th day of August 1829.

Christr. Irvine,

Speaker of the .House of General Assembly.

William Desvignes,

Clerk of the House of General Assembly.

Passed the Board of Legislative Council, this 12th day of August 1829.

Alex. Gairdner,

President of the Legislative Council.

R. B. Pitman,

Acting Deputy Clerk of Council.

Assented to, this 17th day of August 1829.

Nath. Blackwell, Governor.

Duly proclaimed by me, this 17th day of August 1829,

Barclay Wilson, Acting Provost-marshal General.

GOD SAVE THE KING.