Version classiqueVersion mobile
OpenEdition Books

Coleridge’s Laws

 | 
Barry Hough
, 
Howard Davis

3. The Constitutional Position of the Civil Commissioner

Texte intégral

Introduction

  • 1 Caruana.
  • 2 The role of the Grandmasters in areas such as welfare policies and the law is discussed in Chapter (...)

1Coleridge occupied the office of Public Secretary, ”Segretario Publico dell’Isole di Malta, Gozo e delle loro dipendenze”. This office was the channel through which all the civil administration of the islands and all the policies of the British Civil Commissioners were put into effect.1 His legal authority to act in that office came from the authority of the Civil Commissioner, Sir Alexander Ball. Ball was a British official exercising, indirectly, upon authority from London, powers recognised under English law as flowing from the Royal Prerogative. Ball’s authority also came from the considerable prerogatives of the Grandmaster whose powers the British officials took over after the British occupation began in 1800.2 In these capacities it was Ball who exercised the legislative, law making power (formally and actually) in Malta. Coleridge advised, drafted and signed the instruments (the Bandi and Avvisi) but political and legal responsibility for these, and for actions taken under them, lay with Ball. In this chapter we will explore issues relating to the constitutional and legal position of Ball in his capacity as a British official albeit one exercising the powers of a Grandmaster. Those powers were, potentially, despotic and the general theme of this chapter is the nature and degree of the limits and controls imposed, not only politically, but also, and in particular, by the rule of law, on the exercise of these powers by a British official. There are actions by Ball in which Coleridge, if only by being Public Secretary, is implicated and which were politically, but also legally, problematic. Political accountability for such actions, under the new approach to colonial government that the British had adopted, was not, it seems, very effective. Legal accountability, on the other hand, was, at least in principle, more rigorous. There could have been challenges to Ball’s actions, not in the Maltese courts but in the courts in London, applying English law to the position of a Civil Commissioner. On a number of points, such as the way he sometimes intervened in the judicial process, Ball could have been vulnerable to such action. In fact, though, no such cases were brought.

3.1. Colonial Policy and the Civil Commissioner

Introduction

  • 3 See Chapter 2 and Appendix 2.
  • 4 Ball to Dundas, 26 December 1800, Kew, CO 158/1/1. Eton (a British political opponent of Ball’s, s (...)
  • 5 Randon, 347-74.
  • 6 Eton to Sullivan, 5 July 1801, Hardman, 496.
  • 7 The issue is discussed in more detail below.

2A Civil Commissioner was appointed in Malta in order to meet Maltese concerns about being subjected to military rule and, thereby, to try to confirm Maltese allegiance to the British Crown. Following the capitulation of the French garrison, in September 1800,3 the British government considered the possession of Malta in predominantly military terms, as a base for the defence of British military and commercial interests in the Levant and, in particular, for blocking any renewed threat to Egypt. The military government, that had been established under Major-General Pigot, was, for a time, considered sufficient to meet these British aims and to provide a stable and effective government for the Maltese. For many Maltese, however, a military government was unsatisfactory. It might threaten those liberties that they had enjoyed in practice under the Grandmaster and, also, those that might be anticipated under British rule. From aboard his ship, Ball wrote to Dundas, in March 1801, that ”(t)he inhabitants conceive their liberty insecure until the military and civil power be divided”. 4He added that the burden of a civil and military government would be excessive for one office-holder, and insisted that the Maltese were anxious lest their concerns were neglected. Ball’s representations were clearly persuasive. The Secretary of State appointed Charles Cameron the first Civil Commissioner, in May 1801.5 Though, according to William Eton, the new Civil Commissioner was ”received as a Messiah” by the people,6 the Civil Commissioner’s authority was to operate in parallel with the military and the issue of military and civil relations was left unresolved for a number of years.7 In 1803 Cameron left Malta to become governor of the Bahamas and Sir Alexander Ball was appointed as Civil Commissioner.

The Absence of Legislative Assemblies

  • 8 See generally, Manning, Part One.
  • 9 Armitage, ’The Ideological Origins of the British Empire’, 3.

3As with Cameron, Ball had to work within the context of British colonial policy and ambitions. The occupation, by the British, of Malta, in 1800, took place at a time of a gradual, and not completely conscious, shift in policy towards colonial government8. The former model of colonial government was decentralised and had at its centre a more or less complex relationship between a local legislative assembly and a Governor whose consent was required to enact legislation. The ideology of this ”First” Empire had been one of assimilation. It had not been an empire of conquest but an ”outpost of British norms’, founded predominantly upon oceanic commerce and Protestantism and inhabited by metropolitan migrants.9

  • 10 E.g. Manning, 140-2.
  • 11 Hobart to Seaforth, 20 August 1801, Kew CO 29/29/1, where the Secretary of with the Executive gove (...)
  • 12 Hobart to Seaforth, 6 January 1803, Kew, CO 29/29/25-6, quoted in Manning, 141.
  • 13 Castlereagh seemed to prefer prorogation followed by a public relations campaign by the governor t (...)
  • 14 See Bathurst to Cameron, 31 April (sic), 1817, Kew, CO 24/17/64.
  • 15 (1774), 1 Cowp. 204, 98 ER 1045.
  • 16 In outline, Campbell v Hall held that once the Imperial government had allowed a legislative assem (...)

4However, the British became increasingly disenchanted with having to govern through a legislative assembly. This disenchantment stemmed from areas of conflict (such as slavery) between London and different colonies and also difficulties, illustrated by the American experience, of subduing any spirit of independence amongst the colonial population. Difficulties meant that imperial policy had to be pursued by encouraging governors to use diplomatic and exhortatory means in order to avoid an assembly garnering popular support and becoming the focus for impasse or even revolt.10 Even where an Assembly assumed powers at variance with a governor’s Instructions, Secretaries of State might advise the governor to act with caution and discretion;11 and a minister, in order to avoid direct confrontation, might provide the governor with some State reminded the governor of the importance of ”Prudence and Discretion” in dealing negotiating leeway by speaking to influential members to discover how far, in fact, the practices of the Assembly would be in conflict with ”true Constitutional principle”. Above all was the need to avoid an open breach, ”open contest…. cannot be too cautiously avoided”.12 Thus, ministers were forced to adopt diplomatic means to secure imperial goals and to remind assemblies of the constitutional constraints that bound them.13 There was the possibility of dissolving a recalcitrant legislative assembly. But, though governors might expect support from London14, this was a course of action that raised delicate political questions and considerable risks. Following Campbell v Hall,15 indeed, a dissolution in most cases would require an Act of Parliament, which could be difficult to achieve.16

  • 17 See generally, Manning. The Quebec Act 1774 embodied the new approach that was based on the accept (...)

5The advent of the Revolutionary and Napoleonic Wars, changed the purposes underlying the acquisition of colonies and reinforced a tendency towards more centralised colonial governance that had its origins in the loss of the American colonies. Malta, in particular, was a colony acquired for an immediate military purpose and advantage in the context of war and it then achieved strategic importance. Issues of settlement for British people, which had been central in the ”first” empire, were not a consideration. Changes in the purpose and nature of the British perspective on colonies and the pursuit of the national interest overseas led, often though not always, to a change in the general principles of colonial governance one of whose central features was a determination to govern independently of a local legislative assembly.17

  • 18 Cameron was compelled to warn Eton not to encourage the Maltese to expect ”restoration” of a Consi (...)
  • 19 This was eventually established to British satisfaction by the Royal Commission of 1812: Kew, CO 1 (...)

6For Malta, therefore, it was not surprising that the British consistently rejected the claim, by elements of the Maltese opposition, including William Eton,18 to allow or restore a legislative assembly in Malta (the Consiglio Popolare) that, it was claimed, was customary in Malta but had been allowed to fall into disuse by the Knights. As discussed in Chapter 2, the British ruled by the principle of continuity with the constitution, laws and institutions of Malta as they were prior to the French invasion. It was important, from the British point of view, to demonstrate that, even if there had been a customary assembly in Malta, it had not enjoyed legislative powers.19

The Authority of the Civil Commissioner

  • 20 Hardman, 341-2; NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 185.
  • 21 Hardman, 358-359; NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 204.
  • 22 Hardman, 350-7. The Royal Instructions provided a policy framework for Commissioners to work withi (...)

7The system that was imposed, in the early years of British rule, was, therefore, autocratic. The autocracy was based not simply upon the revised approach to colonial governance which the British had adopted. It also gained legitimacy from the continuity principle which mandated the British, through the Civil Commissioner, to take over the Maltese system, a system ultimately rooted in the autocracy of the Grandmasters. As shown in Chapter 2, the new system was established under the Proclamations of 19 February20 and 15 July 180121 and the Royal Instructions of 14 May 1801.22

Indirect Rule under the Royal Prerogative

  • 23 Blackstone, Book 1, Chapter 7, 232. No attempt is made here to discuss modern day issues about the (...)

8Cameron’s and Ball’s authority to govern, from the British perspective, was based upon the Royal Prerogative. Blackstone, writing of the eighteenth-century constitution, defined the Royal Prerogative as ”that special pre-eminence which the King hath, over and above all other persons, and out of the ordinary course of the common law, in right of his regal dignity”.23

9In effect, it meant that ministers, formally advising the Crown, could act and legislate for Malta independently of any need for authorisation by an Act of Parliament. The Royal Prerogative was used in London to create and authorise a local official (the Civil Commissioner) who would exercise the Crown’s legislative and executive powers in the colony.

  • 24 The Royal Instructions of 1801 for Malta are discussed below.

10From London’s point of view there were obvious practical advantages which this system had over any attempt at more direct rule. In particular, the presence of a locally-based official meant that necessary legislation could be identified and the resulting laws would be appropriate to local conditions. At the same time, the Imperial interest would not be threatened (as it might be by a local legislative assembly) because local legislation would be in the hands of a British official. Political direction and control could be retained in London. The Civil Commissioners would not be exercising some uncontrolled vice-regal authority but be subject to political limits upon their powers. The authority of the Commissioners derived from their Commission and from Royal Instructions which governed their appointment. Civil Commissioners, such as Ball, were subject to Royal Instructions, from the Secretary of State, which set out, albeit in general terms, the policy goals, and the powers delegated to them in order to achieve those goals.24 These Instructions, along with the practical supervision of the Secretary of State and formal review by the Privy Council and its Committee for Trade, established a supervisory context within which Commissioners operated. The Instructions (14 May 1801) to the first Civil Commissioner for Malta, Charles Cameron, were explicitly stated to be ”guidance”, but they had the constitutional force of a Royal command.

  • 25 The despatches that followed Cameron’s Instructions, for example, clarified and amended them in re (...)

11Once the initial Instructions had been issued, ministers could and did provide further advice to the Civil Commissioners. Despatches supplemented, refined or even countermanded the initial instructions.25 The traffic was clearly not all one way. Malta’s Civil Commissioners were in regular communication with ministers, reporting upon the state of the Island’s finances, the system of financial controls, proposals for the food supply, and all other major questions of policy. Such reports, then, assisted the ministers in London to advise the Civil Commissioners on the direction and execution of future policy.

  • 26 This was the Avviso of 25 June 1805 NLM LIBR/MS 430 2/2, Bandi 1805 AL 1814, 15. A copy of this in (...)

12Under this indirect system, the Civil Commissioner had a great deal of local freedom. In particular, as in the case in Malta, he was not only the apparent but usually the real initiator of legislative proposals. Thus, in the case of ”Coleridge’s laws”, all of the political initiatives, leading to their enactments, originated in Malta; subject to the exceptional case relating to passports.26

Powers and Discretion

  • 27 Nothing of significance, in terms of authority, turns on which of these offices is used: Roberts-W (...)

13The Commissioner’s authority and powers derived from his Commission and the Instructions presupposed additional, general powers widely enjoyed by Governors and Commissioners27 in the colonial context. These were implied powers which were assumed in the Instructions and would apply unless explicitly overridden.

14Implied and ancillary powers were derived from interpretation of the Instructions and were those which were necessary or expedient in order to give effect to the Instructions. Such powers, in effect, would expand the scope of the express Instructions, but in a manner that was consistent with and supportive of them. However, their scope was unclear on issues such as whether and to what extent they could authorise coercive actions. In principle that was a matter of interpretation of the Instructions which, under a constitutional separation of powers, should have been done by the courts. In Malta, however, there was no effective procedure by which a judicial challenge to the exercise of his powers by the Commissioner could have been brought. This issue is discussed further, below.

  • 28 Chapman’s absence from the Island on the Corn mission to the Black sea in 1805 was the immediate r (...)

15An example of ancillary powers can be offered from the Instructions received by Charles Cameron in May 1801. Malta could not feed herself. By 1801, the corn supplies from Sicily, a traditional source, had become uncertain when Sicilian ports were closed to British vessels. The Instructions required the Civil Commissioner, as one of the most ”essential” of his duties ”to make yourself thoroughly acquainted with every circumstance relative to the purchase and sale of corn at Malta, of which you will transmit to me (the Secretary of State) a full detailed account”.28 Nothing was said about how this was to be done and Cameron could well have argued that, if necessary, coercive powers to seize and inspect relevant documents (e.g. from recalcitrant officials of the Università) were ancillary to this instruction.

  • 29 Cameron v Kyte (1835), 3 Knapp 332, 345-6.
  • 30 Ibid.
  • 31 (1774), 1 Cowp 161, 98 ER 1021.
  • 32 Ibid.

16Furthermore, the Civil Commissioner had other powers which were inherent to his office. These were powers conferred by law as an incident of the office, rather than by express or presumed terms of the Instructions. Those powers were ill-defined and potentially controversial. The law recognised two grounds for such inherent powers: custom and necessity. A customary power was one usually exercised by the governor of the territory in question.29 Governors lacking express power to pass a particular law would sometimes fall back upon an alleged custom that permitted their action, but the custom relied upon could only be established in evidence by reference to practice within the territory in question.30 This would be extremely valuable for Cameron and Ball in Malta given the wide, if not unlimited, scope of customary authority of the Grandmasters. A”necessary” power was one that the Governor or Commissioner required in order to be able to perform his functions. Governors often claimed as ”necessary” a range of powers that the English courts refused to countenance. Suspending the law in order to deal with serious threats to public order is as example. Mostyn v Fabrigas31 indicates that it was for the judges, in England, to determine whether otherwise unlawful actions were justified on necessity grounds. Most notable amongst these was the power to amend the law. However, in Cameron v Kyte,32 the Privy Council held that the legislative power was not an inherent power of a governor. Although this case was decided after Coleridge’s departure from Malta, it is doubtful whether an English court would have decided the issue differently in 1805. In practice, this meant that if the instructions omitted to confer a law-making power – or only conferred a restricted power – the courts would not allow Civil Commissioners to by-pass these restrictions and act in any manner they thought necessary under the banner of an inherent or necessary power. The powers actually conferred upon the Civil Commissioners in Malta are considered below.

Grandmaster

17From the position of the Maltese, it must be remembered, the British Civil Commissioner continued to exercise the authority of the Grandmaster. This followed from the principle of continuity upon which British government, in the early years, was based.

  • 33 See Hardman, 6.
  • 34 Royal Commission of 1812, Kew, CO 158/19.

18Once the Order of St John had assumed power in Malta the Grandmaster governed as an absolute ruler.33 This absolutism explained the judgement of the 1812 Royal Commission that the Maltese Constitution placed the Civil Commissioner above the law.34

  • 35 Note, however, that legislative powers were, at different times, delegated. In some instances, thi (...)

19Legislative authority was vested exclusively in this office:35 the Grandmasters could make new laws and repeal existing ones on any subject matter. No court or other person or body could question the validity of the laws so passed. The Bandi and the Avvisi under Coleridge’s signature were, thus, immune from legal or constitutional review in the courts of Malta. Grandmasters and their British successors continued to deny, as discussed above, any nationalist claim to the traditional existence of a competing or complementary legislative assembly. As has been discussed, in Chapter 2, Grandmasters had important judicial powers and these Sir Alexander Ball was happy to continue with. He appointed and dismissed the judges and exercised a constitutionally unlimited power to punish, including banishment. His quasi-judicial role of hearing petitions through the Segnatura has also been considered in Chapter 2. A further significant power enjoyed by the Grandmasters was the power of patronage: they nominated persons to every public office. Ball regarded this as a key tool to reward loyalists and to cement the acceptance of British rule. The disastrous consequences of this policy – for which Coleridge expressed support in The Friend – have been considered in Chapter 2.

  • 36 I.e. taxes which were general and permanent rather than focused specifically on particular project (...)

20Whilst his legal or constitutional position was unlimited, the Grandmaster’s authority was, nevertheless, constrained by circumstances, and by his own conception of customs and morality. In particular, he took an oath of office which included a promise not to raise general, permanent, taxes.36 Because the Grandmaster had absolute power, this oath, if breached, would not be enforceable in the courts. One of the most controversial legislative acts of the Coleridge period was the introduction, by a Bando, of an excise duty on spirits. The legality of this is discussed in Chapter 5.

  • 37 This included its judge, Dr Sewell, and senior advocates such as Dr Moncrieff and Dr Stoddart. The (...)

21He would not act entirely by himself but would take advice. Ball, for instance, was usually advised by others, including Coleridge, though consultation was not, in any sense, a legal requirement. Ball was (appropriately) advised by Maltese law officers such as Dr Guiseppe Zammit, but not English law officers. He was also able, informally, to call upon the English legal expertise of the staff of the Court of Vice-Admiralty, after its establishment in 1803. 37

22As regards his public actions, the Grandmaster, like any sovereign, would be expected to act within the law but subject to two important qualifications. First, he had to follow the law as a matter of grace and not obligation. As indicated, his actions could not be directly tested in the Maltese courts. Secondly, the law itself granted wide discretionary powers to the Grandmaster, in particular he seems to have enjoyed an unchallengeable power to suspend laws. We shall see later in the chapter that for the Civil Commissioner, exercising these powers in his capacity as a British official, the situation was, at least in principle, different. In that capacity he was responsible under English law for the exercise of powers derived from the Royal Prerogative and the question of whether his actions, as actions of the Civil Commissioner, could be challenged in the English courts is discussed further below.

Contexts, Limits and Constraints

23Coleridge’s authority to draft and sign the Bandi and Avvisi derived from that of Sir Alexander Ball, the Civil Commissioner, and he, Ball, exercised the constitutionally-despotic powers of the Grandmaster but did so as the British official responsible to ministers in London whose own authority was that of the Crown exercising its Prerogatives. As such he was also subject to a range of constitutional, military, legal and political constraints upon the effective exercise of his powers.

The Royal Instructions in Malta, 1801-180538

  • 38 Hardman, 350-7.

24The Royal Instructions, given to Cameron in May 1801, adopted by Ball and, as mentioned above, subject to further instructions, advice and other pressures from London, created the general policy context within which the Civil Commissioner exercised his powers.

  • 39 See Chapter 2.
  • 40 On this he could rely on Ball’s Memorandum of 26 December 1800, Ball to Dundas, Kew, CO 158/1/1.

25The Instructions, firstly, embodied the primary strategic policy: the continuation of the legal, constitutional and administrative order of the Knights, as it obtained in 1798.39 They required the Civil Commissioner to acquaint himself with the laws, customs and privileges of Malta, under the Knights, as well as the financial state of the islands.40

…in substance at least, and so far as circumstances will admit in for also, no alteration should be made in the modes, laws and regulations according to which the civil affairs and the Revenue of the Island have been heretofore managed unless the same shall appear to the officer commanding HM forces to be required for the safety and defence of the Island, or to be evidently beneficial and desirable, as to leave no doubt of its expediency or of it being generally acceptable to the wishes, feelings and even prejudices of the inhabitants. You will therefore understand that the administration of justice and police is, as nearly as circumstances will permit, to continue to be exercised in conformity to the Laws, and Institutions of the antient (sic) Government of the Order of St John of Jerusalem, subject only to such directions as you may from time to time receive from this country, and to such deviations, in consequence of sudden and unforeseen emergencies, as may in the judgment of the Commander-in-Chief, render departure therefrom necessary and unavoidable, the occasion whereof, however, you will by the first opportunity report to me.

26The important point to note is that any changes to the laws of Malta, such as those made under Coleridge’s hand in 1805, had to fall within the exceptional categories outlined by the Secretary of State, Lord Hobart, in these Instructions.

  • 41 See Chapter 5.3: Taxation. Coleridge’s Bando was accepted as binding in law.

27The Instructions suggest a presumption in favour of continuity, both in ”substance” and also in ”form”. Nevertheless, the status quo was subject to any necessary changes caused by the new circumstances. There was a wide power to make general laws of any kind affecting ”civil affairs and the Revenue” which were undoubtedly beneficial (in the Civil Commissioner’s view) or generally acceptable to the inhabitants. There is no indication how either of these tests were to be established. No court was ever asked to rule upon the legitimacy of laws and policies pursued by the Civil Commissioners, including Ball, although the advice of Maltese jurists was certainly sought in 1895, over the validity of Coleridge’s Bando imposing excise duties.41 Nothing in the Instructions implied that the test for obvious expediency could, for a court, be based upon anything other than the Civil Commissioner’s subjective judgement, at least in the absence of strong evidence pointing to corruption or bad faith. Similarly, the Instructions say nothing about how the wishes, feelings or prejudices of the Maltese were to be ascertained. Again, it is likely that any court would have felt bound to uphold the Civil Commissioner’s judgement upon Maltese opinion. In particular, it must be remembered that there was a clear British intention not to allow a legislative assembly to develop. Thus, the Instructions gave the Civil Commissioners a wide discretion over changes to the law; and it is clear that their political judgement upon what was expedient or desirable for the local population could (and would) involve an overall political assessment in which the British imperial interest, partly reflecting policy instructions from London, was a major factor.

28Nevertheless, the Instructions did not envisage an unlimited legislative power for the Civil Commissioner. There was only a limited power to alter the laws controlling the ”administration of justice and the police” unless on the basis of directions from London or in the context of emergencies, as recognised by the military authorities. But this was more honoured in the reach than in its observance. As we shall discover, some of Coleridge’s laws were passed without reference to the military authorities; although they would, nonetheless, have to be justified under the expediency clause.

  • 42 See Chapter 2.
  • 43 Hardman, 342.

29The purport of the Royal Instructions was communicated to the Maltese in Cameron’s Proclamation of 15 July 180142 which included the undertaking to respect the ”dearest rights” of the Maltese: their churches, holy religion, persons and property.43 The Proclamation promised that the laws would be upheld but there was no explicit promise not to alter Maltese law. A Public Notice (Avviso) of 23 July 1801, signed by Pigot and Cameron, indicated that it was His Majesty’s intention to continue in force the existing laws and administration of justice until such time as His Majesty (emphasis added) should command. The Proclamation is interesting because it gave greater emphasis to the power and willingness of the British Crown to alter the law than was found in the Instructions. Moreover, it implied that alterations to the law would be initiated by the Crown, in London. What was not made explicit was the fact that local legislative and administrative authority, in reality, resided in the person and judgements of the Civil Commissioners, local British officials, rather than the benign paternalism of the British monarch.

30The Instructions continued by requiring the public revenues to be maintained and administered, as under the Knights, subject to changes ”obviously requisite” following the change to British rule. In particular, the various categories of the property of the Order, as identified by Sir Alexander Ball, were to be taken over by the Crown. Customs and Excise was to continue, subject to likely, future, reform; the system, directed by the Unversità, for feeding the population was to continue; the fees and expenses of government were to be identified and reformed if necessary; trade was to develop by making Valletta a free port with particular attention to maintaining effective quarantine through the lazaretto (with the advice and superintendence of William Eton).

Civil and Military Power

31Underlying the Royal Instructions was one of the great constitutional tensions of the early British period – the relations between civil and military powers. Although much of the initial tension had evaporated by Coleridge’s time, it remained an important part of the context, and basic assumptions, behind the exercise of the civil power in 1805. It indicates the kinds of issues that, though they have a military aspect to them, were within the jurisdiction of the Civil Commissioner (and so could be the subject of legal change); it also helps to explain why Coleridge’s signature was required upon the Bandi and Avvisi.

  • 44 Hobart to Cameron, 2 September 1801, Kew, CO 158/1/207 suggests that this was unlikely to have bee (...)
  • 45 Royal Instructions, Hobart to Cameron, 14 May 1801, Hardman, 357; Kew, CO 158/1/88.
  • 46 Ibid.
  • 47 Hobart to Cameron, 21 May 1801, Kew, CO 158/1/107.
  • 48 Pigot to Cameron, 2 July 1801, Kew, CO 158/1/119.
  • 49 Ibid., 114; also, Pigot to Cameron, Kew, 16 August 1801, CO 158/2/81.

32The Instructions began with the doctrine that ”direction and superintendence of the civil affairs and of the revenue of Malta should be separated from the duties of the commander of the forces in that Island…”. Nevertheless, the Instructions did not give the Civil Commissioner any authority over military affairs but insisted that the control of the civil and revenue affairs should be ”in concert” with the officer commanding British forces. Military matters were those concerned with the ”safety and defence” of Malta but other than that, no attempt was made to differentiate between the civil and the military.44 Furthermore, at the beginning, the commanding officer’s ”concurrence and approbation” and signature45 were necessary for all legislative measures, whether civil or military, and the Commander claimed the right to propose legislation for safety and defence with no equivalent power of veto vested in the Civil Commissioner.46 London swiftly realised that the suborning of the civil to the military power, even if real, should not be apparent to the population. A despatch of 21 May 1801 made it clear that, in the event of disagreement with the military commander, the Civil Commissioner was, nevertheless, to sign the instrument and communicate his reasons for dissent only to the commanding officer and the Secretary of State.47 Pigot, the military commander, claimed a wide jurisdiction.48 Disputes between Pigot and Cameron occurred over issues such as the admission of foreigners to the islands, the allocation of passports, the policing of the fortified towns and, in particular, the intractable issue of the jurisdiction of Maltese law and process over British soldiers accused of crimes against Maltese citizens.49

  • 50 Hobart to Cameron, 2 September 1801, Kew, CO 158/1/207 et seq. A copy of this despatch was sent wi (...)

33Cameron sought clarification on the issue from London. Lord Hobart’s response of 2 September 1801 was of great significance.50 The British Government remained unwilling to demarcate, precisely, the discrete civil and military jurisdictions. Rather, the need for cooperation, compromise and the maintenance of harmonious relations with the military was emphasised; though the Civil Commissioner’s right to refer concerns to London was re-stated.

  • 51 See Chapter 5. 9: Passports.

34Nevertheless, Hobart’s despatch clarified and expanded the civil jurisdiction at the expense of the military. Some of Pigot’s specific claims were rejected. Immigration control, specifically the granting of passports and admitting foreigners, was characterised as a civil matter within the Civil Commissioner’s jurisdiction, and it was an issue in which Coleridge would become closely involved.51 What is more, the reply stated that the Civil Commissioner would, henceforth, have an exclusive authority over civil matters.

  • 52 CO 158/1/207; A copy of this despatch was sent with a copy to Pigot for the avoidance of future mi (...)

In all public acts relative to the civil administration the name of HM Civil Commissioner should alone appear and all such acts should be signed by you or by the Secretary of Government under your Authority.52 (Emphasis added).

35Thus, Coleridge’s name eventually appeared at the foot of the Bandi and Avvisi issued by Ball’s administration whilst Coleridge held office as public secretary.

  • 53 Although there was at least one allegation that there was friction between Ball and Villettes: see (...)
  • 54 See, generally, Chapter 5.
  • 55 Bando of 22 March 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 4.
  • 56 Deserters: Avviso of 15 July 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814,17; Bando, 2 September 1 (...)

36Whilst Hobart’s reply of 2 September 1801 was aimed at restricting military jurisdiction, it did not attempt to remove military authority over security matters. There was still scope for civil and military tensions over, for example, the extent to which military competence embraced not only the defence of the Island from external attack but also internal security. The precise distinction between civil and military jurisdictions was not resolved (as if it ever could be) and the practical business of government would depend upon achieving pragmatic cooperation between the military and civil authorities. Much would, therefore, depend upon the individual personalities and the relationship between the Civil Commissioner and the commanding officer. By 1805 military and civil relations seemed to have improved. Pigot had left the Island and had been replaced by Major-General Villettes, with whom Sir Alexander Ball seems to have had an effective working relationship.53 Several of the instruments promulgated by Coleridge seem to have been influenced by representations from or cooperation with the military authorities.54 Thus, the Proclamation (Bando) on spirits55 partly emerged from discussions with the army chief physician and had the support of senior commanders; similarly, the Avviso and the Bando concerning the recapture of deserters and the Avviso relating to the dishonest taking of enlistment money, also suggest some high-level cooperation between the military and civil jurisdictions.56

Power to Change the Law in Malta

37It is clear, therefore, that the Royal Instructions, whilst establishing the principle of continuity, nevertheless envisaged the British making changes to the laws of Malta from the beginning of the occupation. The limits of that legislative power, as written into the Instructions, were quite vague and uncertain and would be difficult to establish judicially. The question, therefore, is whether there were any other, overriding, constitutional and legal constraints upon the exercise of the legislative power which are properly thought of as implied or presumed limits to what could have been done by changing the law. Such limits would have applied to the Bandi and Avvisi promulgated by Ball and Coleridge and so, to the extent that they are recognised or ignored in the drafting, are part of the analysis and evaluation of those instruments.

Legislation and the Grandmaster

  • 57 Kew, CO 158/19. During his administration, there were Maltese critics of Ball, such as Vincenzo Bo (...)

38As discussed above, the Grandmaster, whose authority in Malta the Civil Commissioners adopted, had a legally unconstrained power to change the laws of Malta. The forms of this power were used by Ball, through Coleridge, in the drafting and signing of the Bandi and Avvisi. Whilst the Grandmaster was not subject to legal constraints there were, as suggested above, customary restraints upon his power such as restricting the introduction of new forms of general taxation. The view of the 1812 Royal Commission was that the Grandmasters were ”practically if not legally despotic”57, suggesting that any customary restraints were honoured in the breach. Indeed, critics of Ball, such as Eton, made the same point about his performance in the Grandmaster’s role – it was not the lack of formal constitutional restraint that was the issue but, rather, the despotic practice of his discretion by the Commissioner.

Legislation under the Royal Prerogative

39Other, more complicated, issues arose concerning the limits, if any, of a Civil Commissioner, as a British official, to change the law in a colony. There were two linked issues. First, the general power of the Crown to authorise and require changes to the law in a colony and, secondly, whether the Commissioner could exercise that Royal power himself, like a Viceroy, or whether his powers were always limited, in principle, even if the practical scope of the limits were hard to establish, by the specific grant of legislative authority from the Crown.

  • 58 12 Co. Rep 74, 77 ER 1352
  • 59 Campbell v Hall (1774), 1 Cowp. 204, 98 ER 1045, below.

40By the eighteenth century it was agreed, following the Case of Proclamations 1610,58 that the scope of the Royal Prerogative was a matter of law to be determined by the courts in England and that the Crown had lost the power of independent legislation at home in normal times. The eventual result of the Civil Wars made it clear that any independent right of the Crown to legislate, tax or take other coercive actions in times of emergency (and who defined the emergency) was also lost. Changing the law required an Act of Parliament. However, the Crown retained an independent power to legislate for colonies, such as Malta, which were either conquered by the Crown or ceded to it.59 This power could be exercised in one of two ways. The first way was by ministers themselves in the form of an Order in Council. Such Orders had the force of an Act of Parliament but, as Campbell v Hall (below) makes clear, could be overruled by a later Act of Parliament whose terms were clear and which applied to the colony in question (as discussed below, there were a few such Acts applying to Malta). The second way, used predominantly in Malta, was to use the Royal Prerogative to authorise an official with legislative powers. Since a delegate could not expand his own delegated powers, such authority would, at most, be restricted by any limits on the Crown’s powers.

  • 60 (1774), 1 Cowp. 204; 98 ER 1045.

41Following Campbell v Hall60 a distinction was made between settled colonies and those which were conquered or ceded. Settled colonies were uninhabited or places where, from a European perspective, there were no established, working institutions of law and government. In such places, the English colonists brought with them, as it were, the domestic law of England.

  • 61 Laferla, XI. Napoleon had ceded sovereignty over Malta to the Czar shortly before the French were (...)
  • 62 15 June 1802. Widely reproduced, e.g., Cm 9657 Appendix F, Frendo; see Roberts-Wray, 685 (who acce (...)
  • 63 The Foltina (1814), 1 Dods 450 suggests that military conquest itself transfers sovereignty. See a (...)
  • 64 For a discussion of the issues, which sides with the conquest theory, see Davis and Hough (2007).

42Malta clearly did not come into the category of a settled colony; it was either ”conquered” or ”ceded”. The Kingdom of the Two Sicilies had not formally ceded sovereignty following the French invasion and occupation. The British, at least at the beginning of the occupation, offered reassurances to Ferdinand’s court despite the fact that the French surrender was accepted by Major-General Pigot exclusively under the British flag to the deliberate exclusion of Maltese, Sicilian and Russian representatives.61 In respect of the view that Neapolitan sovereignty was not restored by the removal of the French but reverted to the Maltese people, it has been powerfully argued that Malta was informally ceded to Britain by the Maltese through the will of the people and, in particular, the Declaration of Rights of the Inhabitants of the Islands of Malta and Gozo.62 In regards to this theory, the British would have been bound by the terms of the Declaration and this might have been seen as restricting the development of British interests. The British government’s had a preference for conquest as the justifying theory for British rule in the early years63. In any event, conquered or ceded colonies have the same status in English law.64

  • 65 This, by the end of the eighteenth century was also a principle of international law (Vattal, 389, (...)

43Conquered or ceded colonies were Crown dominions. The local population became fully equal subjects of the Crown. The existing laws (e.g. the Code de Rohan in Malta) continued to apply,65 but the Crown had, under English law, the legal authority to alter this law without needing the consent of the United Kingdom Parliament. However, this power to legislate, with the authority of the Royal Prerogative alone, was subject to at least three caveats.

44First, whilst it was within the scope of the Royal Prerogative to establish a colonial legislative assembly, once this occurred, it was the assembly and not the Crown, exercising its Royal Prerogatives, which could legislate. What was even more serious from a British ministerial point of view was that an assembly’s power to legislate could only be revoked by an Act of Parliament. This was one reason why the British were unwilling to create an assembly, with legislative powers, on Malta. In a conquered or ceded colony, of course, such a move would, in any case, have been inconsistent with the principle of continuity.

45Secondly, the Crown’s power to legislate alone for a conquered or ceded colony was subject to the overriding authority of an Act of Parliament (one which extended to the colony or which limited the overseas exercise of the Royal Prerogative). In other words, Parliament could always pass laws applicable in Malta.

  • 66 (1774), 1 Cowp. 204; 98 ER 1045.

46Thirdly, the extent of the content of the Crown’s legislative power (outside Parliament) was unclear. Campbell v Hall66 suggested that the Crown’s legislative powers may have been restricted but just what those restrictions were appeared then, as now, elusive. Lord Mansfield, in words that have become notorious, said

  • 67 (1774) 1 Cowp. 204, 209; 98 ER 1045, 1048.

this legislation [the Crown’s legislative power outside Parliament] being subordinate, that is subordinate to his own authority in Parliament, he cannot make any change contrary to fundamental principles: he cannot exempt an inhabitant from that particular dominion; as, for instance, from the laws of trade, or from the power of Parliament, or give him privileges exclusive of his other subjects; and so in many other instances that might be put.67

  • 68 The power ended, at least for domestic UK purposes, by the Bill of Rights 1688.
  • 69 See the discussion in 2008 by Lord Hoffman in R (Bancoult) v Secretary of State for Foreign and Co (...)
  • 70 See Chapter 5.4: Public Order and Crime.

47At least three possible meanings arise from these words. The first possibility was that Royal Prerogative legislation (including laws purportedly authorised by Ball and signed by Coleridge) must not be ”repugnant” to (inconsistent with) an Act of Parliament extending to the colony. This would seem to be uncontroversial, since Parliament and not the Crown is the supreme law-making body. Secondly, Lord Mansfield may have meant that there were ”fundamental principles” or an irreducible minimum of basic liberties, such as freedom from slavery, which could, as lex non scripta, restrain the Crown or the Civil Commissioner. Finally, the possibility that, as the context and examples suggest, the ”pretended power” of the Crown to suspend the laws was not be used by the Crown in its overseas possessions.68 If this had been correct, the King’s legislative power did not extend, for example, to legal discrimination against members of the local population (such as punishing a person more severely than the law allowed) or giving particular legal privileges or exemptions.69 If so, Ball may have contravened this in relation to the banishment of certain offenders convicted of rumour-mongering.70

  • 71 Lyanage v R [1967] 1 AC 259, 285.

48Lord Mansfield’s statement became notorious in the mid nineteenth century and led to legislative change. Under the Colonial Laws Validity Act 1865, the restraint upon the Crown’s power to legislate for a colony was limited to matters repugnant to an Act of Parliament extending to the colony. In later years they were subject to little argument.71 In the early British period in Malta, the statement stood in all its ambiguity.

49The question about the limits to the Civil Commissioner’s legislative powers will be returned to later in this chapter when the issue of civil and criminal liability is discussed.

  • 72 Chitty is clear that this is a legal restraint on the King (Chitty, 29).

50Lord Mansfield also said, regarding conquered colonies, that the ”articles of capitulation upon which the country is surrendered and the articles of peace by which it is ceded, are sacred and inviolable according to their true intent and meaning”. It is unclear whether ”sacred and inviolable” restrains the Crown exercising its Royal Prerogatives voluntarily or as a matter of law;72 it is possible that it could restrict Parliament in regard to the way general words in an Act are interpreted but it is doubtful whether it could restrict the deliberate and expressed intention of an Act of the Crown in Parliament.

  • 73 Hardman, 319-22.

51The Malta Articles of Capitulation73 gave rise to few clear rights or duties with respect to the parties. They were mainly concerned with the disposition of French troops and the military take-over. Provisions reaching civilians included collaboration – the matter of whether a person could be punished for things said or done during the occupation (article 8) and the matter of freedom of movement and property. British acceptance of Article 8, dealing with collaboration, merely assured the population that that they would be treated with ”justice and humanity, and shall enjoy the full protection of the laws”. Article 9 proposed the right of French civilians to return to France with all their property, this was accepted by the British but, as with Article 8, with the weakening caveat that it was not an appropriate provision for military capitulation. Article 12 was the most controversial because it proposed a general right to the benefit of all property transactions undertaken by the French government and civilians. This seemed to ratify the French despoilment of the Island. The legal obligation upon the British was qualified since Article 12 was only accepted so far as the transactions were ”just and lawful”.

3.2. Legal Restraints on Power

Introduction

52We have seen that Coleridge’s authority was a reflection of that of the Civil Commissioner. The latter had, in effect, the powers of the Grandmaster. These were wide and despotic. Despotic, formally, because of the absence of a separation of powers and properly independent judiciary, and despotic in practice depending upon the personality of the incumbent. There were few legal constraints, powers were discretionary and limited by the personal conscience of the incumbent. But the Civil Commissioner was also a British official who was exercising authority stemming from the Royal Prerogative. This gave him wide executive and legislative powers including the right to change the law in Malta (a ceded or conquered colony). The scope of this right, as a power under the Royal Prerogati e, was certainly wide but not, perhaps, thought to be unlimited in the early nineteenth century. The problem, in what follows, is to identify and discuss any general, legal or constitutionally-based constraints upon the exercise of these legislative and executive powers. The underlying issue is the lawfulness of particular actions and how these might have been challenged in the courts and the focus is upon the grounds a court might have had for holding an action, legislative or executive, to have been unlawful.

53There were three general grounds upon which a Governor or Commissioner could have been brought before the courts. First, there was civil liability where the Commissioner or Governor could have been sued by a victim of his actions, secondly there was criminal liability where he could have been prosecuted by the Crown for criminal offences and, finally, the possibility that actions that were neither tortious (invoking civil liability) nor criminal could, nevertheless, have been unlawful because they were ultra vires being beyond the Commissioner’s powers. The first two, civil and criminal liability, raised two important issues which will be discussed below: the issue of jurisdiction and the issue of justification.

54By the early nineteenth century, English law was beginning to develop a somewhat ill-defined conception of accountable, constitutional government. Civil Commissioners operated within the normative framework of their office as it was being structured not just by ministers and Parliament but also by the courts reflecting English constitutional practice and conceptions of the rule of law. The nature and scope of this framework, the understanding of the constitutional and legal position of British administrators exercising official power overseas, was complex and developing as the scope and purposes of British rule changed.

Jurisdiction

  • 74 (1774), 1 Cowp 161, 98 ER 1021.
  • 75 He recovered £3,000 damages with £90 costs.

55Could Governors and Commissioners have been brought before the courts at all or were they, as Royal representatives, outside the jurisdiction of the courts altogether? English courts decided in Mostyn v Fabrigas74 that Governors and, therefore, Civil Commissioners could be liable for exercising their powers in an unlawful way by committing crimes or civil wrongs in their official capacity. Briefly, the governor of Minorca had assaulted, imprisoned and then exiled to a foreign country, a political opponent whom he alleged was fermenting riot and disorder. The alleged actions had taken place on a part of the Island where the writ of the local courts did not run and the governor’s powers where absolute or at least not justiciable in the Minorcan courts. The English courts accepted jurisdiction (by using a legal fiction that the assault had also taken place in London) and held that the governor was liable in tort.75

  • 76 (1774), 1 Cowp 160, 175.

56Mostyn is the authority for the view that the governor was like a Viceroy and so immune from civil or criminal action in the local courts (in relation, it seems, to alleged violation of either local or English law). In question, on one hand, was the scope and substance of Royal power and this was not within the competence of local courts to determine: ”for no question concerning the seignory, can be tried within the seignory itself”. On the other hand, it could not be lawful to abuse the Crown’s commission without remedy. It was a ”monstrous proposition” to claim that ”…a governor acting by virtue of letters patent under the Great Seal, is accountable only to God, and his own conscience; that he is absolutely despotic, and can spoil, plunder, and affect His Majesty’s subjects, both in their liberty and property, with impunity,…”76 The matter, therefore, could be tried before the English courts.

  • 77 See Hill v Bigge (1841), 3 Moore PC 465, 481-2; 13 ER 189.
  • 78 See Chapter 5.4: Public Order and Crime.

57In subsequent cases, the view that the legality of a Commissioner’s actions could not be challenged in the local courts was said to be a mere obiter dictum and eventually set aside.77 The point being that in Minorca the actions were, geographically, outside the jurisdiction of the local courts. In Malta, of course, there was, similarly, no procedure for bringing the Grandmaster before the Maltese courts and, under the principle of continuity, the Civil Commissioner enjoyed the same immunity. Thus, Mostyn does not address the situation where the local law does have procedures for questioning the actions of the Commissioner. In Sir Alexander Ball’s time, the issue was uncertain but it can be speculated that it would not have been possible to act against him in the Maltese courts but the English courts would have had jurisdiction to hear complaints that he had acted in a criminal or tortious fashion. The cases of Borg, Hasciach and Bonello would have raised interesting possibilities here.78

  • 79 See also, for example, Dutton v Howell [1693] Shower PC 24; Comyn v Sabine (1738), cited in 1 Cowp (...)
  • 80 11 William III c.12.
  • 81 Unlike the Act of 1700 the 1802 Act did not extend to felonies.

58Mostyn v Fabrigas illustrates the fact that a Civil Commissioner had personal civil liability, enforceable in English courts, at the suit of a person harmed by an unlawful, tortious act which was, nevertheless, done in the course of the Civil Commissioner’s conception of his duty, in good faith and for the public interest.79 As Mostyn illustrates, these tortious actions could include assault and battery, false imprisonment and torture. These were also criminal offences that might be prosecuted by the Crown. Criminal responsibility, of Governors and Civil Commissioners, was established under a series of statutes. Governors who oppressed their subjects, or who violated the laws of England or the laws of their colonies, were also liable to be tried in England under a statute of 170080 and this was extended, by the Criminal Jurisdiction Act 1802, to the effect that all persons who, in the course of their responsibilities, whether civil or military, committed a misdemeanour or offence whilst in the public service abroad, could be tried in England.81

Justification

  • 82 ”I suppose the old Minorquins thought fit to advise him [Governor Mostyn] to this measure. But the (...)

59Any Commissioner or Governor brought before the English courts would be entitled to defend an otherwise criminal or tortious action upon the grounds of lawful justification, that the actions were within the scope of his lawful powers. Thus, as mentioned above, English law recognised implied powers to take necessary actions to maintain order and security. Though justification would need to be determined by the English courts, they would allow defences derived from the local law upon which evidence could be taken. However, there could be a problem, not clearly resolved in the early nineteenth century, if the actions in issue, though lawful under the local law, were unlawful under English law. Mostyn v Fabrigas suggests that a Commissioner would not, necessarily, have a legal justification for actions that, if done in England, would have been unlawful just because the actions (taken bona fide and in the public interest) were lawful under local law. In the case, Governor Mostyn had been advised that a Governor’s powers, under Minorcan law at the time of British occupation, allowed arrest, detention and exile. Lord de Grey, at first instance, took the view that, even under the policy of continuity, local laws which were offensive to fundamental principles recognised in English law, such as the illegality of torture, ceased having legal validity once English authority was established.82

  • 83 Though the issue was to some extent revived in R (Bancoult) Secretary of State for Foreign and Com (...)

60But the issue was not decided at that time and had become increasingly controversial by the mid nineteenth century. The question of the definition and specification of what counted as a ”fundamental principle” was too complex and discretionary to answer with adequate certainty. So, under the Colonial Laws Validity Act 1865, the limiting principle was redefined as inconsistency with a United Kingdom statute applying to the colony.83

  • 84 (1812), 30 St Tr 225.
  • 85 By ”picketing” or using a wooden spike to pierce the foot under the weight of the victim’s body wh (...)
  • 86 The case report ends to the effect that it was thought by the Bar at the time that Picton would ha (...)

61In the early nineteenth century, however, the issue was clearly live as is indicated by the famous case of R v Picton.84 The defendant, who had been governor of Trinidad, was accused of having personally authorised torture, as a technique of questioning, in a criminal investigation.85 Under the procedures of the day he was convicted, then the conviction was set aside and a re-trial followed. The re-trial was suspended in 1812 but, it seems, Picton was never fully exonerated. 86

  • 87 Torture was, apparently, always illegal under common law; the Crown lost the Prerogative right to (...)
  • 88 Blackstone, Introduction, section 4, 105. Blackstone cites Calvin’s Case and so is vulnerable to L (...)
  • 89 See Peere Williams’s Reports, vol 2, case 15, 74, 1826, London: Butterworth.

62Picton’s defence was that torture, in order to question a defendant, was allowed for by the normal procedures of traditional Spanish law which applied in Trinidad at the time of British occupation. Much of the case involved an exploration of whether Spanish law did authorise torture and this was a question that an English jury, on the basis of expert evidence and judicial direction, had to decide. In the first trial the jury found that torture was not part of the law status quo, ante the British occupation, and so there was a conviction. The hearing to set that conviction aside, and the second trial, involved a challenge to that finding – the defence argued that torture was part of the applicable Spanish law and so (given that there was no evidence of bad faith or malice and that Picton had done nothing more than follow normal procedures) Picton should be acquitted. But the prosecution’s point was that, even if it was allowed under Spanish law, and given the principle of continuity, torture was both illegal under the positive law of England87 and was also contrary to fundamental principles which were the bases of and presumed by that positive law. Authorities cited included Blackstone, the leading authority on the eighteenth-century English Constitution, who considered that local laws contrary to the laws of God would not be continued,88 and his opinion reflects the Master of the Roll’s memorandum, of 1722, that ”until the conqueror gives them [the inhabitants of a conquered country] new laws, they are to be governed by their own laws, unless their laws are contrary to the laws of God or totally silent”.89 Similarly, the view of Lord de Grey, in Mostyn, was urged upon the court. In the end, the issue was never decided though it is clear, from the report, that the presiding judge, Lord Ellenborough, was sympathetic to the defence case. This might, contrary to the view of the Bar at the time, have led to him ordering an acquittal on the sufficient grounds that torture was lawful under the local law (if that was the finding). If so, he would have rejected the view that oppressive and unconscionable laws became unlawful with the arrival of the British flag.

  • 90 Eton alleged that a market inspector, Sateriano, had been tortured by being imprisoned with live r (...)

63The issue is important because the law, the Code de Rohan, permitted torture where the victim had been convicted of treason and the aim of torture was to identify accomplices. There were allegations that the authorities may have used it in at least one case.90

  • 91 See the cases of Hasciach, Borg and Bonello discussed in Chapter 5.4: Public Order and Crime.

64Ball may have violated Lord Mansfield’s principles in other ways. As we shall see, in Chapter 5 (the public order and crime theme), Ball seems to have been prepared to go beyond his legal powers in order to exile individuals responsible for anti-Semitic violence.91 In so far as this involved suspending the laws (the Grandmaster’s powers in the criminal part of the Code de Rohan) he was, clearly, vulnerable to legal action based both on the grounds that executive suspension of the laws violated fundamental principles as did the power of exile itself. If the imposition of the exile, which Coleridge publicised in Public Notices, was, thus, contrary to ”fundamental principles” in Lord Mansfield’s sense, it raises the intriguing argument that some of the sentences of exile (which Coleridge publicised and appeared to approve) may have been unlawful and challengeable, at least in an English court. How sympathetic to Ball an English court would have been if Borg, Hasciach or Bonello (the subjects of Coleridge’s Notice) had challenged their punishment is now a matter of speculation. However, it is not a foregone conclusion that the English judges in the early nineteenth century would have accepted that Ball’s actions were lawful, merely because he acted in good faith, without malice, and on the grounds of security and public order.

Ultra Vires Actions

65Mostyn v Fabrigas and R v Picton deal with a gubernatorial action which was unlawful in the sense that, had the actions been committed in England, they would, subject to any lawful justifications, have been crimes or torts. Governors and Commissioners were required to exercise their powers using lawful means. A different question relates to whether Governors or Commissioners were lawfully limited in the scope of the powers they had. In particular, whether there might be legal consequences if a governor or civil commissioner exceeded his powers, as expressed in the Royal Instructions, even though the actions taken where not otherwise unlawful – were neither criminal nor tortious? An example would be where an unauthorised tax was imposed. Could the courts restrain such acts? There were two general views. On one view, Commissioners or Governors were like Viceroys. In other words, they were, themselves, exercising the Royal Prerogative directly, in the eyes of the law. Whatever the Crown could do in its colonies so, too, could a Viceroy. No doubt, the Crown should use lawful means (though the Crown’s judgement of what would be justified in the public interest would be hard to challenge) but a court could not, as a matter of law, limit the purposes and policies being pursued. According to the the other view, Commissioners or Governors were like Royal delegates governing on the basis of their Instructions. This interpretation would mean that actions taken outside those Instructions would lack legal validity.

66At the time when Ball was Civil Commissioner, and Coleridge his Public Secretary, the position was unclear. In Mostyn v Fabrigas, Lord Mansfield had appeared to suggest that an otherwise lawful ultra vires act could be invalidated by a court (though, of course, only in England) but his formulation of the principle was decidedly ambiguous:

  • 92 Mostyn v Fabrigas (1774), 1 Cowp 161, 173, 98 ER 1028, Lord Mansfield.

So that emphatically the governor must be tried in England, to see whether he has exercised the authority delegated to him by the letters patent legally and properly; or whether he has abused it in violation of the laws of England and the trust so reposed in him.92

  • 93 Mostyn v Fabrigas (1774), 1 Cowp 161 172, Lord Mansfield. See also Roberts-Wray, 147.
  • 94 This represents academic opinion: see, generally, Swinfen

67This suggests both an ultra vires argument (in the first clause) but, in the second clause, an implication that an illegal and improper exercise of authority is confined to criminal or tortious actions. Furthermore, in Mostyn, Lord Mansfield had asserted that ”it is truly said that the Governor is in the nature of a viceroy”93 (and, therefore, is not subject to criminal or civil liability in local courts). This also implies that the Viceroy (having all the powers of the sovereign in the territory) could, in law, pursue otherwise-lawful administrative actions even if they went beyond the authority in the Instructions. In the absence of a crime or a tort, he could not be challenged in the courts either locally or in England. This meant that, at the time Coleridge was in office, it was probably, though not certainly, the case that actions not authorised by Royal Instructions would be valid and binding upon the local courts. In other words, the Instructions directed the Civil Commissioner but did not create mandatory, legally-enforceable, obligations. Only the Secretary of State, in London, would have the authority to require the recission of an unauthorised measure and the measure would be valid until rescission had taken place. 94

  • 95 (1835), 3 Knapp 332, 12 ER 678.
  • 96 An official who sold, by public auction, property seized under the order of the court.
  • 97 (1835), 3 Knapp 322, 344, 12 ER 678, 683

68The English courts only resolved the matter decades after Coleridge had resigned his office and left Malta. In Cameron v Kyte,95 the Governor had issued an ”instruction” purporting to reduce the commission of the local Vendue Master.96 The power to make such a reduction could not be found in the Governor’s Instructions and, though it was not directly a tort or a crime, the English court (upholding the local courts) allowed the Vendue Master’s claim. The Governor’s purported act was invalid and incapable of having legal effect, it was outside his Commission and Instructions. The idea that the Governor was like a Viceroy, with the ”whole Royal power” delegated to him, was explicitly rejected in the judgement.97 A further point about Cameron v Kyte is that, although final appeal was to the Privy Council in London, the jurisdiction of the local courts (Supreme Court of Civil Justice in Demerara and Essequibo) to hear a dispute about the scope of a Governor’s powers was not challenged.

International Law

  • 98 De Vattel’s The Law of Nations was considered to be an important source book for diplomats by the (...)
  • 99 Kew, CO 158/13/262.
  • 100 Kew, CO 159/3/131.
  • 101 See Avviso of 25 June 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 15; and further, Chapter 5.9: (...)

69Finally, it is worth observing that the law of nations was sufficiently developed to provide a normative framework within which policy, action affecting other states would have to be conducted and justified.98 This had possible implications in Malta in the early British period. For example, the decision to feed a Maltese population which was, in January 1800, on the brink of starvation, by seizing, at gunpoint, grain supplies loaded onto ships in Sicilian ports, was a prima facie unlawful action. It was crucial that the Sicilian Crown later ratified this use of force against ships in a friendly port.99 International law also influenced British ministers in repudiating Ball’s adventurous and controversial policy of granting British passports to Sicilian and Neapolitan vessels.100 As acting Public Secretary, Coleridge was required to re-structure the government’s passport policy to ensure consonance with both the principles of international law and the political direction of British ministers.101

3.3. Political Constraints

Introduction

70The legal analysis of the position of a Civil Commissioner, such as Sir Alexander Ball, suggests that there were, in legal principle, a number of areas within which he could be constrained by the courts. In practice, though, this was difficult to do (if only because of the need to bring an action in the courts in London) and, thus, it is true that Ball’s actions were never challenged. Of greater practical significance were the conditions and constraints upon a Commissioner’s freedom of action based upon political procedures and power.

Political Accountability to London

  • 102 The constitutional doctrine was that the Secretary of State acted under the authority of the King (...)

71Commissioners were subject to political supervision, guidance and instruction from London. This political control was exercised through letters and despatches between the Civil Commissioner and the Secretary of State. In these despatches, Civil Commissioners reported their decisions and actions to ministers and received further detailed instructions from them. A diligent Secretary of State could, thus, limit the Civil Commissioner’s freedom of action to policies and decisions established within a framework prescribed in London.102

72Civil Commissioners who took unauthorised action outside of their Instructions naturally courted political sanctions. Reprimand or removal from office could follow as a result of unauthorised conduct. These sanctions reflected political judgement rather than being the necessary consequence of legal wrongs and depended upon the judgement of the Secretary of State in London. Unlike a determination by a court, the political outcome was not governed by a legal normative framework. Indeed, an errant Civil Commissioner could escape all sanction because a minister could properly decide, upon political grounds, either to ratify the unauthorised conduct or, simply, to take no action. However, there were limits. Ratification could not make lawful an act which was unlawful in the sense of being a crime or a tort. In other cases, political considerations were usually overriding, and the preservation of the prestige and authority of British rule was an important consideration.

  • 103 Chapter 2 Section 3.
  • 104 See Windham to Ball, 6 January 1807, Kew, CO 159/3/220 at 223; Windham to Ball, 19 December 1806, (...)

73In Malta, for example, politics played a critical role in how the Secretary of State responded to the serious, and not altogether unfounded, criticism of Ball’s administration in 1806. As we have seen in Chapter 2,103 Ball had been invited responded to ”such serious Charges against your administration, as call for immediate Investigation”, but once he had done so, a formal decision was delayed until 1808.104 When the decision came Ball was formally (if not altogether convincingly) ”acquitted”, by his superiors, but the significant issue is that embarrassment had been avoided by a politically-convenient long delay. As we have argued in Chapter 2, the finding that the complaints were entirely baseless was not fully supported by the evidence and suggests a closing of ranks by the Establishment.

Accountability and Legislation

  • 105 Manning, 75-81.

74Under the old system of colonial governance, colonial legislation, emanating from provincial legislative assemblies, was submitted to the Secretary of State in London for review under the authority of the Privy Council (its Committee for Trade). Colonial statutes could be disallowed upon various grounds including interference with individual property and rights and general inexpediency. The Committee could act upon political advice from the Secretary of State and upon the advice of the Law Officers, who were alive to constitutional objections such as an improper encroachment upon the Royal Prerogative.105

75Malta, was an early example of the new model of colonial governance, which, therefore, lacked a legislative assembly. Accordingly, the process of legislative scrutiny did not apply. Ball’s/Coleridge’s legislative acts were legally effective without the Secretary of State’s prior approval. And they were not routinely ratified ex post facto. In other words, despite the continual stream of correspondence upon major policy issues, between London and Ball, there is no surviving evidence that texts of the Bandi and Avvisi were communicated to London either for approval or to keep the Secretary of State abreast of new developments in the legal system.

  • 106 See Chapter 5.

76There were, however, a number of particular issues upon which the Instructions required that information, and proposals for regulation, be transmitted to London for His Majesty’s approval. These included any ”deviations”, deemed necessary and unavoidable from the existing Maltese laws and practices, relating to justice and police. There was also an express requirement that any regulations deemed necessary, to deal with possible abuses in the courts and the judicial system (a particular concern in 1801 and discussed in Chapter 2), should be communicated to London prior to publication for approval. However, it should be noted that Ball chose to submit a copy of the Avviso of 25 June 1805 to the Secretary of State in order to demonstrate that he had fulfilled instructions in relation to passports.106 This is, of course, a very different matter, from establishing a duty to submit each of the Bandi and Avvisi.

  • 107 See, for example, the Avviso of 22 May 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 8 which appea (...)

77This is not necessarily surprising since, under the principle of continuity, there was an assumption that little legal and regulatory change would be necessary. This was a major weakness in the system of ensuring that the British administration on Malta was accountable. As Chapters 5 and 6 make clear, a number of the Bandi and Avvisi issued under Coleridge’s signature contained provisions which were inconsistent with basic assumptions of the rule of law. They, sometimes, lacked comprehensibility, seemed to impose obligations upon the population of an uncertain nature or created criminal offences by notice rather than by proper legal procedure.107 The lack of any reporting requirement meant that such defects in legislation, obvious to legal scrutiny, could not be picked up and remedied by Law Officers in London.

78Other forms of direct political control from London were equally weak at this time.

Ministerial Responsibility to Parliament

  • 108 E.g., the Lord Chancellor refused to report on treaty negotiations with Russia in 1805, which invo (...)

79Although the modern convention of ministerial responsibility had yet to evolve, a Secretary of State might, nonetheless, be called upon to explain and justify, to Parliament, his colonial policies, including those relating to Malta. In the case of the Crown’s prerogative powers, however, ministerial accountability was more discretionary than for other national affairs.108

  • 109 See, famously, Lord Wyndham’s intervention on the negotiations for the definitive treaty of peace, (...)
  • 110 See Cobbett’s Parliamentary History (until 1802) and Cobbett’s Parliamentary Debates 1803, vols. 1 (...)
  • 111 Cobbett’s Parliamentary Debates, vol 2 has, for instance, debates on the India budget, Sierre Leon (...)

80There were some Parliamentary debates relating to Malta in the period 1800-1806. These related to the negotiations on the Treaty of Amiens and the resumption of the war with France in 1803 – Malta having been the casus belli.109 There were no debates dealing with the ordinary governance of Malta in this period.110 This lack of Parliamentary concern and scrutiny can be contrasted with other areas of colonial activity in which Parliament did express a considerable and continuing interest, such as the affairs of India and the slave trade.111

  • 112 In 1819 Joseph Hume attacked ministers on the grounds that governors and the secretary of state we (...)

81The quiescence of the Parliament meant that colonial policy was dominated by Whitehall without serious parliamentary scrutiny.112 A Minister could invite the Privy Council to enact an Order in Council – if he wished to pass a law that would be directly effective in a colonial territory. This was a comparatively rare occurrence. The system chosen for Malta emphasised bureaucratic rather than democratic controls over the Maltese. When Ball’s administration passed laws in Malta, they did so under the political and legal authority of instructions from ministers in Whitehall under which Ball enjoyed considerable freedom of action.

Legislation

  • 113 41 Geo III c103, repealed by the Statute Law (Repeals) Act 1986 Ch 1 pt IX.
  • 114 43 Geo III c160. The salaries were to be paid under the same conditions as laid down in the Act 39 (...)

82As discussed in this chapter, the British system for governing Malta, in the early period, was based upon indirect rule using the Royal Prerogative. possible alternative, rule on the basis of powers conferred by an Act of Parliament, was avoided. The political costs and insecurities of securing Parliamentary consent for the details of colonial policy were too great. Nevertheless, where an objective was sought that could not be done under the Royal Prerogative, an Act of Parliament was necessary, and there were occasions, in the early nineteenth century, when ministers obtained Acts of Parliament which related to Malta. The aim of creating a free port in Malta, immune from certain taxes, was such a purpose and was pursued through the enactment of the Malta Act 1801.113 Legislation was also enacted to provide for the payment of salaries of the Vice-Admiralty judges in the newly created Court of Vice-Admiralty in Malta in 1803.114

  • 115 Harding, 10 et seq; the issue is discussed above.
  • 116 A clause was inserted into in the Articles of War, published annually under the authority of the M (...)

83When problems arose about the mode of trial of a British soldier, Private John Allary, who was accused of murdering a Maltese civilian, the civil and military authorities disagreed as to the applicable law.115 When the unresolved dispute was placed before the Law Officers of the Crown, they favoured the arguments of the Civil Commissioner that the local civil jurisdiction should apply. As this outcome was unsatisfactory to the military, the matter had to be resolved by the passing of legislation in Westminster.116

3.4. Conclusion

84Sir Alexander Ball, under the continuity principle, exercised the wide and absolute powers of the Grandmaster, powers that were not effectively reviewable by the Maltese courts. They were autocratic powers in the sense that he controlled the legislative, executive and judicial functions. Nevertheless, Ball was also a British official operating the law of Malta. His authority derived from his Commission and Instructions, which were subject to little, if any, review by the courts.

85The Crown, under English law, had the power to change the law in a conquered or ceded colony and, in the case of Malta, this legislative power would be exercised by the Civil Commissioner (using the forms of Maltese law). At least, as a matter of politics, if not law, Ball had to ensure that changes to Maltese law would need to be for the express, implied or ancillary purposes found in the Instructions. As we have seen, these purposes were very wide. Ball would have little difficulty in establishing that the laws promulgated under Coleridge’s signature were (in the words of the Royal Instructions) ”evidently beneficial and desirable, as to leave no doubt of [their] expediency”. The task of persuading the Maltese of this was, in some instances, significantly more challenging. As we shall see in Chapters 5 and 6, it fell to Coleridge to make the political case for each of the instruments, within the text of the laws and public notices.

86Persons detrimentally affected by allegedly unlawful actions of the Civil Commissioner could pursue whatever domestic remedies were available. In the case of Malta, it seems that the law and its practice provided little by way of remedies against the Civil Commissioner. It was clear, from earlier cases, that if the Civil Commissioner committed a tort or a crime under English law he could be tried in England and English courts would determine any defences of lawful justification (based upon the local law) that might be argued. Any locally-lawful justifications, like torture in the context of treason, might be rejected, if they were deemed to be unlawful under English law, upon the grounds that, being unconscionable and against fundamental principles, they had ceased to be lawful following the British occupation. However, in Coleridge’s time, such a view was only arguable, not settled. It might have been the case, as became settled later in the nineteenth century, that unlawful actions could be addressed in the local courts but, again, this was not clear at the time and, anyway, may have had little impact in Malta given the strength of the Civil Commissioner’s position. Similarly, it is unclear whether an otherwise lawful action, outside the express or implied powers in the Instructions, could be challenged in the courts, local or English. In particular, any such act could, retrospectively, be validated by the Secretary of State in London.

  • 117 At least not in his life time. In 1895 a claim to compensation from Britain for losses caused by t (...)
  • 118 See Chapter 5.4: Public Order and Crime.

87No suit, whether civil or criminal, was ever brought in England challenging any of Sir Alexander Ball’s actions as Civil Commissioner.117 However, this is not to say that his decisions were always unambiguously within the law. The punishments that Coleridge notified to the Maltese public by an Avviso of 22 May 1805 are problematic.118 In these cases, Ball inflicted severe punishments that, apparently, exceeded the maximum penalty available in Maltese criminal law. The punishments were a prima facie tort, under English law, and the question for the English courts would have been whether Ball’s defence of justification would have succeeded. His actions were probably lawful under Maltese law (given the position of the Grandmaster) but this would not necessarily have satisfied the English court if they were outside the written law and also, perhaps, unconscionable.

  • 119 See Chapter 2.
  • 120 Royal Commission of 1812, 236. At the same time, they steadfastly refused to recognise traditional (...)

88Ultimately, the despotic powers of the Civil Commissioner meant that the liberties of the subject depended upon the conscience of the Civil Commissioner. The 1812 Royal Commission concluded that this was unsustainable. It recommended that constitutional reform, necessary to impose ”some restraint”, should be pursued. In this, some of the criticisms of the nationalists, particularly Eton, were implicitly accepted.119 The Royal Commission recommended the ending of the Commissioner’s suspending and dispensing powers, though it considered that the power of exile, by a simple warrant, should remain, albeit subject to greater checks than previously.120 However, those reforms lay in the future, many years after Coleridge left Malta.

Notes

1 Caruana.

2 The role of the Grandmasters in areas such as welfare policies and the law is discussed in Chapter 2.

3 See Chapter 2 and Appendix 2.

4 Ball to Dundas, 26 December 1800, Kew, CO 158/1/1. Eton (a British political opponent of Ball’s, see below) thought that any delay in establishing a civil government could lead to insurrection (Eton to Sullivan, 5 July 1801, Hardman, 496).

5 Randon, 347-74.

6 Eton to Sullivan, 5 July 1801, Hardman, 496.

7 The issue is discussed in more detail below.

8 See generally, Manning, Part One.

9 Armitage, ’The Ideological Origins of the British Empire’, 3.

10 E.g. Manning, 140-2.

11 Hobart to Seaforth, 20 August 1801, Kew CO 29/29/1, where the Secretary of with the Executive government of Barbados.

12 Hobart to Seaforth, 6 January 1803, Kew, CO 29/29/25-6, quoted in Manning, 141.

13 Castlereagh seemed to prefer prorogation followed by a public relations campaign by the governor to win public support against the assembly was an alternative: Manning, 142. After 1815 ministers were more prepared to support governors anxious to adopt a firmer stance with assemblies: the governor was praised for dissolving the Bahamian assembly in 1817 after it ordered the imprisonment of the Attorney-General: Kew, CO 24/17 Bathhurst to Cameron, 30 April 1817, quoted in Manning, 147.

14 See Bathurst to Cameron, 31 April (sic), 1817, Kew, CO 24/17/64.

15 (1774), 1 Cowp. 204, 98 ER 1045.

16 In outline, Campbell v Hall held that once the Imperial government had allowed a legislative assembly to be set up it could not be dissolved other than by an Act of Parliament unless the Crown, when establishing the assembly, had reserved a power of dissolution.

17 See generally, Manning. The Quebec Act 1774 embodied the new approach that was based on the acceptance of the existing laws and institutions of the subject territory but the refusal to allow local legislatures with significant power to develop: Manning, 294-6. A contrary example is Britain’s brief occupation of Sicily, 1806-1815: see Gregory.

18 Cameron was compelled to warn Eton not to encourage the Maltese to expect ”restoration” of a Consiglio Popolare: Cameron to Eton, 22 May 1802, Kew, CO 158/4/43.

19 This was eventually established to British satisfaction by the Royal Commission of 1812: Kew, CO 158/19, although rejection of the Maltese claim was consistently done through Ball’s period.

20 Hardman, 341-2; NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 185.

21 Hardman, 358-359; NLM LIBR/MS 430 1/2; Bandi 1790 AL 1805, 204.

22 Hardman, 350-7. The Royal Instructions provided a policy framework for Commissioners to work within. The Royal Instructions for Malta are discussed below.

23 Blackstone, Book 1, Chapter 7, 232. No attempt is made here to discuss modern day issues about the scope of the Prerogative.

24 The Royal Instructions of 1801 for Malta are discussed below.

25 The despatches that followed Cameron’s Instructions, for example, clarified and amended them in relation to the demarcation of responsibility between the civil and military authorities.

26 This was the Avviso of 25 June 1805 NLM LIBR/MS 430 2/2, Bandi 1805 AL 1814, 15. A copy of this instrument was transmitted to London: Kew, 158/10/195; see Chapter 5.9: Passports.

27 Nothing of significance, in terms of authority, turns on which of these offices is used: Roberts-Wray, 306. The Maltese experience suggests that ”Governor” applies when British sovereignty was certain. The first ”Governor” was Sir Thomas Maitland appointed in 1813; formal cession occurred in the Treaty of Paris 1814. In Sammut v Strickland [1938] AC 678, British courts accepted Malta as a ceded colony ”not later than 1813” and left its status between 1800 and 1813 uncertain. The issue is discussed by Davis and Hough (2007).

28 Chapman’s absence from the Island on the Corn mission to the Black sea in 1805 was the immediate reason why Coleridge became Acting Public Secretary.

29 Cameron v Kyte (1835), 3 Knapp 332, 345-6.

30 Ibid.

31 (1774), 1 Cowp 161, 98 ER 1021.

32 Ibid.

33 See Hardman, 6.

34 Royal Commission of 1812, Kew, CO 158/19.

35 Note, however, that legislative powers were, at different times, delegated. In some instances, this may have been necessary since the Order was itself not permitted to engage in commerce. For example, the first Chamber of Commerce, during its brief existence in the eighteenth century, was authorised to make laws for the better regulation of commerce: see, generally, Debono (1988).

36 I.e. taxes which were general and permanent rather than focused specifically on particular projects.

37 This included its judge, Dr Sewell, and senior advocates such as Dr Moncrieff and Dr Stoddart. The independence of such advice is challengeable because all four (and Coleridge) enjoyed a close social relationship. He did this in relation to criminal cases see Chapter 2 for a discussion of his powers, where the outcomes were conformed in all but one case: Ball to Windham, 28 February 1807, Kew, CO 158/13.

38 Hardman, 350-7.

39 See Chapter 2.

40 On this he could rely on Ball’s Memorandum of 26 December 1800, Ball to Dundas, Kew, CO 158/1/1.

41 See Chapter 5.3: Taxation. Coleridge’s Bando was accepted as binding in law.

42 See Chapter 2.

43 Hardman, 342.

44 Hobart to Cameron, 2 September 1801, Kew, CO 158/1/207 suggests that this was unlikely to have been an oversight. The British Government’s policy was evidently not to define the scope of these two jurisdictions.

45 Royal Instructions, Hobart to Cameron, 14 May 1801, Hardman, 357; Kew, CO 158/1/88.

46 Ibid.

47 Hobart to Cameron, 21 May 1801, Kew, CO 158/1/107.

48 Pigot to Cameron, 2 July 1801, Kew, CO 158/1/119.

49 Ibid., 114; also, Pigot to Cameron, Kew, 16 August 1801, CO 158/2/81.

50 Hobart to Cameron, 2 September 1801, Kew, CO 158/1/207 et seq. A copy of this despatch was sent with a copy to Pigot for the avoidance of future misunderstand-ings between them: see Kew, CO 159/3/40.

51 See Chapter 5. 9: Passports.

52 CO 158/1/207; A copy of this despatch was sent with a copy to Pigot for the avoidance of future misunderstandings between them: see CO 159/3/40.

53 Although there was at least one allegation that there was friction between Ball and Villettes: see statement by Borg, 30 May 1806, Kew, CO 158/12 (no folio reference). There may also have been some friction between Ball and Pigot, which may explain why Ball was not chosen as the first Civil Commissioner in May 1801 despite his popularity with the Maltese: see the address to Ball dated 11 February 1801, Hardman, 343.

54 See, generally, Chapter 5.

55 Bando of 22 March 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 4.

56 Deserters: Avviso of 15 July 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814,17; Bando, 2 September 1805 NLM LIBR/MS 430 2/2 Bandi AL 1814,21; enlistment money: Avviso, 20 June 1805 NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 12. These are discussed below, Chapter 5.

57 Kew, CO 158/19. During his administration, there were Maltese critics of Ball, such as Vincenzo Borg (the former leader of the Birkirkara battalion. Following his dismissal by Ball from the Board of Administrators of Public Property, and as part of a campaign to discredit, the Civil Commissioner, Borg described the Maltese as fearing Ball’s ”great despotism”: Borg to Eton, 30th May 1806 Kew, CO 158/12/ no folio reference

58 12 Co. Rep 74, 77 ER 1352

59 Campbell v Hall (1774), 1 Cowp. 204, 98 ER 1045, below.

60 (1774), 1 Cowp. 204; 98 ER 1045.

61 Laferla, XI. Napoleon had ceded sovereignty over Malta to the Czar shortly before the French were expelled; the Czar became Grandmaster.

62 15 June 1802. Widely reproduced, e.g., Cm 9657 Appendix F, Frendo; see Roberts-Wray, 685 (who accepts formal accession as an alternative).

63 The Foltina (1814), 1 Dods 450 suggests that military conquest itself transfers sovereignty. See also Penn, for a contemporaneous view. Deliberating retrospectively, in 1836, Lord Glenelg, the Secretary of State, endorsed the conquest thesis for the early period through his criticisms of the voluntary cession in the reports on the legal system by the Chief Justice, Stoddart: Kew, CO 158/91. Stoddart’s Reports are bound as appendices.

64 For a discussion of the issues, which sides with the conquest theory, see Davis and Hough (2007).

65 This, by the end of the eighteenth century was also a principle of international law (Vattal, 389, section 201), at least where the quarrel is with the sovereign power rather than the peoples.

66 (1774), 1 Cowp. 204; 98 ER 1045.

67 (1774) 1 Cowp. 204, 209; 98 ER 1045, 1048.

68 The power ended, at least for domestic UK purposes, by the Bill of Rights 1688.

69 See the discussion in 2008 by Lord Hoffman in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61, [90].

70 See Chapter 5.4: Public Order and Crime.

71 Lyanage v R [1967] 1 AC 259, 285.

72 Chitty is clear that this is a legal restraint on the King (Chitty, 29).

73 Hardman, 319-22.

74 (1774), 1 Cowp 161, 98 ER 1021.

75 He recovered £3,000 damages with £90 costs.

76 (1774), 1 Cowp 160, 175.

77 See Hill v Bigge (1841), 3 Moore PC 465, 481-2; 13 ER 189.

78 See Chapter 5.4: Public Order and Crime.

79 See also, for example, Dutton v Howell [1693] Shower PC 24; Comyn v Sabine (1738), cited in 1 Cowp, 169.

80 11 William III c.12.

81 Unlike the Act of 1700 the 1802 Act did not extend to felonies.

82 ”I suppose the old Minorquins thought fit to advise him [Governor Mostyn] to this measure. But the governor knew that he could no more imprison him for a twelvemonth, than he could inflict the torture; yet the torture, as well as the banishment, was the old law of Minorca, which fell of course when it came into our possession”, Fabrigas v Mostyn [1773] 2 Wm Bl 929; (1773), 20 St Tr 82, 181 De Grey LCJ; quoted by Lord Rodger in R (Bancoult) Secretary of State for Foreign and Com-monwealth Affairs [2008] UKHL 61.

83 Though the issue was to some extent revived in R (Bancoult) Secretary of State for Foreign and Commonwealth Affairs [2008] UKHL 61 where a majority of the House of Lords accepted that, at least after the enactment of the Colonial Laws Validity Act 1865, the Crown had the power to legislate to exile the local population of a colony. On this view even a local law upholding torture could not be set aside if it was not repugnant to a UK statute extending to the colony (per Lord Rodger, para 98) though in practice its enactment would not have been permitted.

84 (1812), 30 St Tr 225.

85 By ”picketing” or using a wooden spike to pierce the foot under the weight of the victim’s body which was suspended onto the spike from a pulley. The practice was used in the British army. In Picton the prosecution sought to distinguish this army practice from torture (”piqueting” from Pictoning) because the soldiers could, temporally, pull themselves off the spike.

86 The case report ends to the effect that it was thought by the Bar at the time that Picton would have been convicted but only lightly punished. It is noted that he fought with distinction in the Peninsular War and died an heroic death at Waterloo in 1815, leading a bayonet charge.

87 Torture was, apparently, always illegal under common law; the Crown lost the Prerogative right to torture in 1640.

88 Blackstone, Introduction, section 4, 105. Blackstone cites Calvin’s Case and so is vulnerable to Lord Mansfield’s view in Campbell v Hall that the doctrine in anachronistic.

89 See Peere Williams’s Reports, vol 2, case 15, 74, 1826, London: Butterworth.

90 Eton alleged that a market inspector, Sateriano, had been tortured by being imprisoned with live rats and thereby forced to confess. His conviction resulted in banishment to Tripoli: Eton to Windham, 11 October 1806, Kew, CO 158/12/ no folio reference. The facts have been disputed: see Staines, 226.

91 See the cases of Hasciach, Borg and Bonello discussed in Chapter 5.4: Public Order and Crime.

92 Mostyn v Fabrigas (1774), 1 Cowp 161, 173, 98 ER 1028, Lord Mansfield.

93 Mostyn v Fabrigas (1774), 1 Cowp 161 172, Lord Mansfield. See also Roberts-Wray, 147.

94 This represents academic opinion: see, generally, Swinfen

95 (1835), 3 Knapp 332, 12 ER 678.

96 An official who sold, by public auction, property seized under the order of the court.

97 (1835), 3 Knapp 322, 344, 12 ER 678, 683

98 De Vattel’s The Law of Nations was considered to be an important source book for diplomats by the end of the eighteenth century. Hinsley, 200-1.

99 Kew, CO 158/13/262.

100 Kew, CO 159/3/131.

101 See Avviso of 25 June 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 15; and further, Chapter 5.9: Passports.

102 The constitutional doctrine was that the Secretary of State acted under the authority of the King in Council. It is doubtful whether the Secretary of State read every despatch; much was delegated to one of the two Under-Secretaries. Sir Alexander Ball, for example, often addressed despatches to E. Cooke: see Ball to Cooke, 3 February 1805, Kew CO 158/10/ 19; Ball to Cooke , 21 July 1805, Kew, CO 158/10/187-8; Ball to E. Cooke, 1 March 1806 Kew, CO 158/11 (no folio number); Ball to E. Cooke, 30 November 1807, Kew, CO 158/13/463.

103 Chapter 2 Section 3.

104 See Windham to Ball, 6 January 1807, Kew, CO 159/3/220 at 223; Windham to Ball, 19 December 1806, Kew, CO 159/3/218 at 219. A formal resolution was not despatched. Ball to Windham, Kew, 28 February 1807, CO 58/13/9.

105 Manning, 75-81.

106 See Chapter 5.

107 See, for example, the Avviso of 22 May 1805, NLM LIBR/MS 430 2/2 Bandi 1805 AL 1814, 8 which appeared to create criminal offences in a public notice and described those offences in such a vague, un-followable, way.

108 E.g., the Lord Chancellor refused to report on treaty negotiations with Russia in 1805, which involved the exercise of the crown’s prerogative powers in relation to a foreign state, Cobbett’s Parliamentary Debates, vol 5, 2-12.

109 See, famously, Lord Wyndham’s intervention on the negotiations for the definitive treaty of peace, 1802 Cobbetts Parliamentary History, vol 36, 565.

110 See Cobbett’s Parliamentary History (until 1802) and Cobbett’s Parliamentary Debates 1803, vols. 1-6. The first recorded debate specifically on Maltese affairs occurred in 1811 and involved allegations of extortion (by extracting unlawfully high fees) by the Court of Vice Admiralty, Parliamentary Debates, XL, 1077-9.

111 Cobbett’s Parliamentary Debates, vol 2 has, for instance, debates on the India budget, Sierre Leone Company and compensation for the West Indies relating to proposals to abolish the slave trade; vol 36 of Cobbett’s Parliamentary History includes a debate on Trinidad and the slave trade.

112 In 1819 Joseph Hume attacked ministers on the grounds that governors and the secretary of state were conducting government in the conquered colonies without either being properly accountable. Criticism was particularly levelled at whether the Secretary of State, without reporting the matter to Parliament, should have control over significant expenditure in relation to the military establishments of the colonies. Worse still, Parliament had no knowledge of the revenue produced by the colonies. The absence of a colonial council meant that there were no checks on the governors.

113 41 Geo III c103, repealed by the Statute Law (Repeals) Act 1986 Ch 1 pt IX.

114 43 Geo III c160. The salaries were to be paid under the same conditions as laid down in the Act 39 Geo III c110.

115 Harding, 10 et seq; the issue is discussed above.

116 A clause was inserted into in the Articles of War, published annually under the authority of the Mutiny Act, exempting from civil jurisdiction members of the military accused of criminal offences in Malta.

117 At least not in his life time. In 1895 a claim to compensation from Britain for losses caused by the French between 1798 and 1800 was rebutted by the British authorities by reference to Coleridge’s Bando of 8 March 1805, LIBR/MS 430 2/2 Bandi 1805 AL 1814 f.2; the latter was treated as still valid law in 1895: see Chapter 5.3: Taxation.

118 See Chapter 5.4: Public Order and Crime.

119 See Chapter 2.

120 Royal Commission of 1812, 236. At the same time, they steadfastly refused to recognise traditional existence of a legislative assembly or promote its establishment.

Acheter