Handford, Peter --- "Edward John Eyre and the Conflict of Laws" [2008] MelbULawRw 26; (2008) 32(3) Melbourne University Law Review 822
[*] LLB (Birm), LLM, PhD (Cantab); Professor of Law, The University of Western Australia. I would like to acknowledge my debt to the late Professor Kurt Lipstein, an inspirational teacher of conflict of laws at the University of Cambridge, for first interesting me in this subject many years ago. See below nn 171, 229 and accompanying text for references to some of Lipstein’s works and for a discussion on his impact on the field of conflict of laws.
[1] Phillips v Eyre (1870) LR 6 QB 1, 28–9 (Willes J).
[2] Ibid. The other judges were Kelly CB, Martin, Channell, Pigott and Cleasby BB and Brett J. The matter was in the Chamber on a writ of error from the Court of Queen’s Bench where it was heard by Cockburn CJ, Lush and Hayes JJ: see Phillips v Eyre (1869) LR 4 QB 225.
[3] See Kemp v Piper [1971] SASR 25, 27–8 (Bray CJ).
[4] See The M Moxham [1876] UKLawRpPro 28; (1876) 1 PD 107, 115 (Baggallay JA).
[5] [1897] UKLawRpKQB 90; [1897] 2 QB 231, 233 (Lopes LJ), 235 (Rigby LJ). The defendant took out a summons for leave to amend his defence by pleading that by Brazilian law libel could not be a ground of legal proceedings in which damages were claimed. A two‑judge Court of Appeal refused to allow the amendment on the ground that the plea did not state that publication was not a criminal offence under Brazilian law. It was assumed for the purpose of the case that libel was not tortious in Brazil — an artificial and highly unlikely assumption: at 233 (Lopes LJ), 234 (Rigby LJ). Machado v Fontes was followed by the Supreme Court of Canada in McLean v Pettigrew [1945] 2 DLR 65.
[6] In Australia, the decision was criticised by the Victorian Court of Appeal and by the High Court of Australia: see Varawa v Howard Smith Co Ltd [No 2] [1910] VicLawRp 65; [1910] VLR 509, 528–31 (Cussen J); Koop v Bebb [1951] HCA 77; (1951) 84 CLR 629, 642–4 (Dixon, Williams, Fullagar and Kitto JJ); Anderson v Eric Anderson Radio & TV Pty Ltd [1965] HCA 61; (1965) 114 CLR 20, 40 (Windeyer J). Machado v Fontes was also distinguished by the Privy Council on appeal from the Supreme Court of Canada in Canadian Pacific Railway Co v Parent [1917] AC 195, 205 (Viscount Haldane); was not followed in Scotland in M’Elroy v M’Allister [1948] ScotCS CSIH_4; 1949 SC 110; and is inconsistent with several Privy Council decisions: see Walpole v Canadian Northern Railway Co [1923] AC 113; McMillan v Canadian Northern Railway Co [1923] AC 120.
[7] Boys v Chaplin [1971] AC 356, 377 (Lord Hodson), 381 (Lord Guest), 388 (Lord Wilberforce), contra 383 (Lord Donovan), 400 (Lord Pearson). Lord Wilberforce’s judgment was followed in subsequent cases: see, eg, Church of Scientology of California v Commissioner of Metropolitan Police (1976) 120 SJ 690; Coupland v Arabian Gulf Petroleum Co [1983] 2 All ER 434, 443–6 (Hodgson J); Armagas Ltd v Mundogas SA [1985] UKHL 11; [1986] 1 AC 717, 740–1 (Goff LJ); Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190, 198 (Lord Slynn).
[8] See Boys v Chaplin [1967] EWCA Civ 3; [1968] 2 QB 1, 38–9 (Diplock LJ); Hessel E Yntema, ‘Essays on the Conflict of Laws’ (1949) 27 Canadian Bar Review 116.
[9] See Donald B Spence, ‘Conflict of Laws in Automobile Negligence Cases’ (1949) 27 Canadian Bar Review 661; P Gerber, ‘Tort Liability in the Conflict of Laws’ (Pt 1) (1966) 40 Australian Law Journal 44; P E Nygh, ‘Boys v Chaplin or The Maze of Malta’ (1970) 44 Australian Law Journal 160; P E Nygh, Conflict of Laws in Australia (2nd ed, 1971) 407–9. In Australia, the idea that both rules were jurisdictional questions was judicially accepted in Anderson v Eric Anderson Radio & TV Pty Ltd [1965] HCA 61; (1965) 114 CLR 20, 41 (Windeyer J); Kolsky v Mayne Nickless Ltd (1970) 72 SR (NSW) 437. For a similar view in Canada, see Gagnon v Lecavalier (1967) 63 DLR (2d) 12. Contra Boys v Chaplin [1971] AC 356, 385–7, where Lord Wilberforce argues that the first rule is a choice of law rule but the second rule is concerned with jurisdiction. The other judges in Boys v Chaplin do not deal specifically with the point: Lord Donovan implies that the rule is jurisdictional (at 383), Lord Pearson implies that it is a choice of law rule (at 398), and the judgments of Lord Hodson (at 374) and Lord Guest (at 381) are ambiguous. For other cases that do not consider both rules in Phillips v Eyre to be concerned with jurisdiction, see Kemp v Piper [1971] SASR 25; Warren v Warren [1972] Qd R 386; Corcoran v Corcoran [1974] VicRp 22; [1974] VR 164; Interprovincial Co‑Operatives Ltd v The Queen [1976] 1 SCR 477, 501 (Laskin CJ); Red Sea Insurance Co Ltd v Bouygues SA [1995] 1 AC 190, 198 (Lord Slynn).
[10] See Potter v Broken Hill Pty Co Ltd [1905] ArgusLawRp 95; [1905] VLR 612, 633–5 (A’Beckett J) (dissenting); Koop v Bebb [1951] HCA 77; (1951) 84 CLR 629, 644 (Dixon, Williams, Fullagar and Kitto JJ); Anderson v Eric Anderson Radio & TV Pty Ltd [1965] HCA 61; (1965) 114 CLR 20, 41 (Windeyer J). Contra M’Elroy v M’Allister [1948] ScotCS CSIH_4; 1949 SC 110; Boys v Chaplin [1971] AC 356, 389 (Lord Wilberforce).
[11] Phillips v Eyre (1870) LR 6 QB 1, 28.
[12] [1971] AC 356, 379–80 (Lord Hodson), 389–92 (Lord Wilberforce), contra 381 (Lord Guest), 383 (Lord Donovan). The position of Lord Pearson is less clear: at 405. See also J H C Morris, The Conflict of Laws (1st ed, 1971) 269–70. Cf G C Cheshire and P M North, Cheshire’s Private International Law (8th ed, 1970) 263. For a discussion of Boys v Chaplin, see P M North and P R H Webb, ‘Foreign Torts and English Courts: I. The Effect of Chaplin v Boys’ (1970) 19 International and Comparative Law Quarterly 24. M’Elroy v M’Allister [1948] ScotCS CSIH_4; 1949 SC 110 (see below n 210 and accompanying text) is a good example of a case where the flexibility exception would have provided a more just result: see J H C Morris, ‘Torts in the Conflict of Laws’ (1949) 12 Modern Law Review 248. See also Szalatnay‑Stacho v Fink [1947] KB 1.
[13] See Warren v Warren [1972] Qd R 386; Corcoran v Corcoran [1974] VicRp 22; [1974] VR 164; Borg Warner (Australia) Ltd v Zupan [1982] VicRp 44; [1982] VR 437, 453 (Marks J). Contra Kolsky v Mayne Nickless Ltd (1970) 72 SR (NSW) 437.
[14] See Australian Constitution s 118.
[15] This theory was rejected by Anderson v Eric Anderson Radio & TV Pty Ltd [1965] HCA 61; (1965) 114 CLR 20, 24–5 (Barwick CJ), 31 (Kitto J), 37 (Taylor J), 39–40 (Menzies J), 45–6 (Windeyer J).
[16] See, eg, Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, 77 (Mason CJ), 99 (Wilson and Gaudron JJ), 127–8 (Deane J). The minority adopted the orthodox double actionability approach, but only Toohey J was prepared to follow Lord Wilberforce in Boys v Chaplin in recognising a flexibility exception: at 163.
[17] See McKain v R W Miller & Co (SA) Pty Ltd [1991] HCA 56; (1991) 174 CLR 1; Stevens v Head [1993] HCA 19; (1992) 176 CLR 433.
[18] See Edward I Sykes and Michael C Pryles, Australian Private International Law (3rd ed, 1991) 573–9; P E Nygh and Martin Davies, Conflict of Laws in Australia (7th ed, 2002) 430–8; Lawrence Collins (ed), Dicey and Morris on the Conflict of Laws (12th ed, 1993) vol 2, 1523–7.
[19] See, eg, John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503, which dealt with the choice of law rule for interstate torts. In Regie Nationale des Usines Renault SA v Zhang [2002] HCA 10; (2002) 210 CLR 491, the High Court extended the application of the lex loci delicti to international torts. For a discussion of the development of the choice of law rules in Australia, see Australian Law Reform Commission, Choice of Law, Report No 58 (1992) ch 6.
[20] See Tolofson v Jensen [1994] 3 SCR 1022. The rule was rejected in relation to both inter‑provincial and international torts.
[21] See Private International Law (Miscellaneous Provisions) Act 1995 (UK) c 42, pt III. This reform was based on Law Commission and Scottish Law Commission, Private International Law: Choice of Law in Tort and Delict, Law Com No 193, Scot Law Com No 129 (1990). Part III does not completely displace the rule in Phillips v Eyre. First, s 13 provides that defamation claims are excluded from the abolition of the common law rule effected by s 10, and so remain governed by the common law. Secondly, because s 14(2) provides that ‘[n]othing in [pt III] affects any rules of law … except those abolished by section 10’, there is a preliminary question whether the claim would have been regarded as one subject to Phillips v Eyre at common law: see Adrian Briggs, ‘Choice of Law in Tort and Delict’ [1995] Lloyd’s Maritime and Commercial Law Quarterly 519, 521–2.
[22] See below n 236 and accompanying text.
[23] Phillips v Eyre remains authoritative in the United Kingdom with respect to defamation actions: see above n 21.
[24] For references to the term ‘Jamaica Question’, see, eg, ‘The Jamaica Question’, Punch, or the London Charivari (London), 23 December 1865, 249; ‘The Jamaica Question’ (1866) 10 Solicitors’ Journal and Reporter 265–6 (20 January 1866).
[25] See generally Ernest Favenc, The Explorers of Australia and Their Life‑Work (1908); Tim Flannery (ed), The Explorers (1998); Department of the Environment, Water, Heritage and the Arts, Early Explorers (18 June 2007) Australian Government: Culture and Recreation Portal <http://www.cultureandrecreation.gov.au/articles/explorers> .
[26] See below Part II(C).
[27] A W Brian Simpson, Leading Cases in the Common Law (1995).
[28] (1884) 14 QBD 273. This is a well‑known decision in which two shipwrecked sailors were sentenced to death for killing and eating their young shipmate, and it was held that necessity was not a defence to murder: see A W Brian Simpson, Cannibalism and the Common Law: The Story of the Tragic Last Voyage of the Mignonette and the Strange Legal Proceedings to Which It Gave Rise (1984). For an analysis of Liversidge v Anderson [1941] UKHL 1; [1942] AC 206, another leading case, see A W Brian Simpson, In the Highest Degree Odious: Detention without Trial in Wartime Britain (1992).
[29] Simpson, Leading Cases in the Common Law, above n 27, 10.
[30] Ibid.
[31] Ibid 11–12.
[32] See below nn 141, 147–50 and accompanying text.
[33] See below nn 202–3 and accompanying text.
[34] The Law Times noted that the ‘long‑threatened persecution of Governor Eyre has commenced’: ‘Governor Eyre’ (1867) 42 Law Times: The Journal and Record of the Law and the Lawyers 181 (5 January 1867). Palmer’s Index to the Times several times refers to leading articles ‘On the Eyre Persecution’, although the heading is not used in the newspaper itself.
[35] This discussion is drawn primarily from Geoffrey Dutton, In Search of Edward John Eyre (1982) chs 1–6. For a longer biography by the same author, see Geoffrey Dutton, The Hero as Murderer: The Life of Edward John Eyre — Australian Explorer and Governor of Jamaica
1815–1901 (1967). For other biographies, see further Hamilton Hume, The Life of Edward John Eyre, Late Governor of Jamaica (1867); Malcolm Uren and Robert Stephens, Waterless Horizons: The First Full‑Length Study of the Extraordinary Life‑Story of Edward John Eyre — Explorer, Overlander and Pastoralist in Australia (1945). Eyre published the journals of his Australian explorations: see Edward John Eyre, Journals of Expeditions of Discovery into Central Australia, and Overland from Adelaide to King George’s Sound, in the Years 1840–1; Sent by the Colonists of South Australia, with the Sanction and Support of the Government: Including an Account of the Manners and Customs of the Aborigines and the State of Their Relations with Europeans (1845). See also Jill Waterhouse (ed), Autobiographical Narrative of Residence and Exploration in Australia: 1832–1839 by Edward John Eyre (1859). On Eyre’s career as a colonial administrator, see Julie Evans, Edward Eyre, Race and Colonial Governance (2005). Eyre’s Australian explorations have inspired two musical compositions: Aria for Edward John Eyre (Composed by David Lumsdaine, 1972); Edward John Eyre (Composed by Barry Conyngham, 1973). It has also inspired several poetical works: see, eg, Miriel Lenore, Travelling Alone Together: In the Footsteps of Edward John Eyre (1997, published with Louise Crisp, Ruby Camp: A Snowy River Series); Francis Webb, ‘Eyre All Alone’ in Socrates and Other Poems (1961) 61. Francis Berry, ‘Morant Bay’ in Morant Bay and Other Poems (1961) 1 is another poem dealing with the later episode in Eyre’s life that is the subject of this article.
[36] Today, the Eyre Highway, which runs between Port Augusta in South Australia and Norseman in Western Australia, commemorates the journey of the first European to find an overland route across Australia’s ‘western third’. This phrase is inspired by F K Crowley, Australia’s Western Third: A History of Western Australia from the First Settlements to Modern Times (1960).
[37] See generally Dutton, In Search of Edward John Eyre, above n 35, ch 5.
[38] Grey’s hostile manner was evident from the outset. In fact, Grey only came to Wellington to swear Eyre in five months after Eyre arrived in New Zealand. Even then, Eyre was given very little real power: see ibid 58–9.
[39] This was an attempt by Grey to delay proper representative government, with Grey having the final right of approval of all laws and ordinances: see ibid 63–4. Eyre labelled the Bill ‘[u]tterly repugnant’: at 64.
[40] Ibid viii.
[41] For example, on the 1840–41 expedition, when failing to find a passage to the north because of the salt lakes, Eyre persisted in travelling west rather than returning to Adelaide. Later in the same expedition, Eyre adhered to his decision to keep going west in spite of a plea from Governor Gawler to turn back: see ibid 29–32.
[42] Ibid viii.
[43] Curiously, Bernard Semmel makes no reference to Grey’s conduct towards Eyre, albeit in a brief discussion of Eyre’s period in New Zealand: Bernard Semmel, The Governor Eyre Controversy (1962) 31.
[44] See Eyre, Journals of Expeditions of Discovery into Central Australia, above n 35, vol 2,
147–507.
[45] Dutton, In Search of Edward John Eyre, above n 35, 51.
[46] Ibid 68.
[47] This account is drawn from a number of sources: see, eg, ibid chs 7–9; Semmel, above n 43, ch 2; R W Kostal, A Jurisprudence of Power: Victorian Empire and the Rule of Law (2005) ch 1; ‘The Case of Mr George William Gordon’ (1866) 22 Law Magazine and Law Review; or, Quarterly Journal of Jurisprudence 28. Newspaper coverage in Jamaica commences in The Morning Journal (Kingston) from 13 October 1865 and in The Colonial Standard, and Jamaica Despatch (Kingston) from 12 October 1865. The latter was congratulated for ‘the correctness and completeness of [their] Bulletin’: The Colonial Standard, and Jamaica Despatch (Kingston), 17 October 1865. All the daily reports concerning the rebellion at Morant Bay are reprinted in logical order in the Extra to The Colonial Standard (Kingston), 24 October 1865.
[48] The early constitutional history of Jamaica following the British acquisition of the island in 1655 is complex. It appears that, although initially regarded as a conquered colony, Jamaica was treated as a settled colony from 1728 following the settlement of a dispute with the English authorities about the powers of the Jamaican legislature. Its status as a settled colony was confirmed in Campbell v Hall [1774] EngR 5; (1774) 1 Cowp 204; 98 ER 1045, where Mansfield CJ held that Jamaica’s English inhabitants were entitled to be regarded as British subjects. However, Willes J expresses some doubt on the point in Phillips v Eyre (1870) LR 6 QB 1, 18. For a discussion of the legal status of Jamaica and its early constitutional development, see generally Lloyd G Barnett, The Constitutional Law of Jamaica (1977) 1–10; Sir Kenneth Roberts‑Wray, Commonwealth and Colonial Law (1966) 851–4; B H McPherson, The Reception of English Law Abroad (2007) 109–10, 148, 245–6, 264–5, 268, 351–2. McPherson emphasises the leading role played by Jamaica in providing a model for conferring the jurisdiction of the English courts on a single Supreme Court of Judicature (at 424) and the notion that English settlers took the common law with them as their birthright (at 31, 245–6, 257–8, 352). The idea of the law as the birthright of an English subject was central to the case of Anonymous [1722] EngR 1; (1722) 2 P Wms 75; 24 ER 646. For a discussion of this case, see Justice B H McPherson, ‘The Mystery of Anonymous (1722)’ (2001) 75 Australian Law Journal 169.
[49] In 1863, only 1799 white males from a total population of around 450 000 were registered to vote: A C Burns, History of the British West Indies (1954) 653.
[50] The slaves in western Jamaica rose in revolt in 1832 in the belief that their freedom was being withheld despite the abolition of slavery in Britain: see J H Parry and P M Sherlock, A Short History of the West Indies (3rd ed, 1971) 185–6.
[51] The ancient English title ‘Custos Rotulorum’, which means keeper of the rolls, was given to the Governor’s representative in each region of Jamaica (known as a Parish): Dutton, In Search of Edward John Eyre, above n 35, 77.
[52] For example, a dispute between them as to what constituted membership of the Church of England was twice litigated in the Circuit Court. On both occasions, the Court found for von Ketelholdt only for Gordon to obtain a rule nisi for a new trial: The Morning Journal (Kingston), 12 October 1865.
[53] For example, a letter from Gordon to his agent Henry Lawrence notes that ‘the man, Mr Eyre, is an arch liar, and he supports all his emissaries … the wicked shall be destroyed. This is decreed. God is our refuge and strength, a very pleasant [sic] help in trouble’: Dutton, In Search of Edward John Eyre, above n 35, 87 (emphasis in original).
[54] See ibid 83.
[55] The text of the proclamation is set out in ‘The Insurrection in Jamaica’, The Times (London), 17 November 1865, 9; ‘The Proclamation’, The Morning Journal (Kingston), 14 October 1865.
[56] Eyre’s dispatch of 17 October 1865, quoted in Dutton, In Search of Edward John Eyre, above n 35, 97. The newspapers shared Eyre’s view: The Colonial Standard (as cited in The Morning Journal (Kingston), 20 October 1865) noted that Gordon incited the rebellion through rash speeches, in order to rectify what he saw as a wrong against the people. The Colonial Standard also seemed certain by this stage that Gordon had incited the rebellion, despite expressing incredulity at the fact that a man of such intelligence and standing in the country would have sanctioned such violence.
[57] For a discussion of the civil action, see below Part III.
[58] See Dutton, In Search of Edward John Eyre, above n 35, 98–9.
[59] Ibid 96.
[60] Ibid 101. Lieutenant Adcock, for example, reported that ‘I visited several estates and villages. I burnt seven houses in all, but did not even see a rebel. On returning to Golden Grove in the evening, sixty‑seven prisoners had been sent in. … I disposed of as many as possible, but was too tired to continue after dark’: Semmel, above n 43, 17. Prominent among the reports of the suppression were those of Colonel Francis Hobbs: see, eg, the letters quoted in ibid 101–2; Semmel, above n 43, 16. In May 1866, Hobbs, who had served with distinction at the siege of Sebastopol during the Crimean War, was put on a boat for England under escort and committed suicide by jumping over the side: see Semmel, above n 43, 85–6. Gordon Ramsay, the Provost Marshal who was also involved in the excesses that followed the insurrection, also committed suicide: see ibid 96. Some of the others involved, notably Ensigns Cullen and Morris, were later court‑martialled in Jamaica: ibid 133.
[61] This system of government was ‘no more than a form of benevolent despotism’: Barnett, above n 48, 10. See also Raphael Codlin, Historical Foundations of Jamaican Law (2003) 46. In reviewing the events of 1866, the Daily Gleaner (Kingston), 8 January 1867 noted: ‘Our old Constitution passed away in 1866; but whether the change which we have been called upon to make, will conduce to the welfare of our people, Time alone will tell.’ See also The Morning Journal (Kingston), 27 November 1865. Legislation by the Westminster Parliament was required to bring these changes into operation: see Jamaica Act 1866 (Imp) 29 & 30 Vict, c 12. Section 1 provided that the two Acts passed in Jamaica were to be brought into operation when the Royal Assent was proclaimed in Jamaica. For comment, see (1866) 1 Law Journal 214 (20 April 1866).
[62] The Colonial Laws Validity Act 1865 (Imp) 28 & 29 Vict, c 63, which determined when colonial legislation would be considered repugnant to English law, had come into operation on 29 June 1865. The Jamaica Morning Journal commented that, although this Act provided that no colonial Act can be ‘repugnant to the laws of the Mother‑country’, the Jamaican legislature had passed several Acts that it ought to have foreseen would be held invalid when submitted for the consideration of the English law officers: The Morning Journal (Kingston), 26 December 1865; The Morning Journal (Kingston), 27 December 1895.
[63] Notice of the indemnity Bill was given when the parliamentary session opened on 7 November 1865. The Bill passed during the next three days and was assented to by the Governor on 10 November 1865: The Morning Journal (Kingston), 8 November 1865; The Morning Journal (Kingston), 9 November 1865; The Morning Journal (Kingston), 10 November 1865; The Morning Journal (Kingston), 11 November 1865. The Act — set out in full in Phillips v Eyre (1870) LR 6 QB 1, 3–5 — had to be affirmed by the Westminster Parliament. There was speculation that it might be disallowed: see The Morning Journal (Kingston), 21 June 1866, which refers to a parliamentary question on this issue. However, ultimately the Act was affirmed. The Act sanctioning martial law was, however, disallowed by the UK Parliament — see Dispatch from the Earl of Carnarvon read in the Legislative Council on 12 March 1867: Daily Gleaner (Kingston), 13 March 1867.
[64] Dutton, In Search of Edward John Eyre, above n 35, 113.
[65] This headline first appeared in The New York Herald: Semmel, above n 43, 22–3. It was later used by several English newspapers: see ibid 105.
[66] These groups were so named because they had their headquarters at Exeter Hall, located off the Strand in London.
[67] Semmel, above n 43, 22. According to Punch, ‘Exeter‑hall says the case against Governor Eyre is plain. In their hands, we say, it is coloured’: ‘Two Ways of Looking at It’, The Times (London), 23 December 1865, 8 (emphasis in original).
[69] For comment on the decision to set up a Royal Commission, see ‘Legal Topics of the Week’ (1866) 41 Law Times: The Journal and Record of the Law and the Lawyers 125 (6 January 1866).
[70] Semmel, above n 43, 66. The Morning Journal (Kingston), 11 April 1866 gave the figure as 46 days.
[71] Daily Gleaner (Kingston), 8 January 1867. The Jamaica Morning Journal had copies of the Royal Commission Report for sale to the public, with its advertisement reading: ‘WHAT A SHILLING CAN GET! THE BLUE BOOK with The Report of the Royal Commissioners. The Despatch of the Secretary of State. A Coloured Map of Jamaica’: The Morning Journal (Kingston), 16 July 1866.
[72] For the Royal Commission’s conclusions, see Dutton, In Search of Edward John Eyre, above n 35, 111–12. See also ‘The Bench and the Bar’ (1866) 41 Law Times: The Journal and Record of the Law and the Lawyers 580 (23 June 1866); (1866) 10 Solicitors’ Journal and Reporter 801 (23 June 1866). The Times regretted that the Royal Commission did not go further in drawing inferences of responsibility, particularly with regard to the trial and execution of Gordon: The Times (London), 19 June 1866, 11.
[73] See Dutton, In Search of Edward John Eyre, above n 35, 112.
[74] Soon after its formation, the Jamaica Committee sought an opinion from Edward James QC and Fitzjames Stephen on the legality of the measures taken to put down the insurrection. For the text of the opinion, dated 13 January 1866, see ‘The Jamaica Question’ (1866) 10 Solicitors’ Journal and Reporter 265–6 (20 January 1866); ‘The Jamaica Rebellion: Opinion’ (1866) 41 Law Times: The Journal and Record of the Law and the Lawyers 179 (27 January 1866); ‘The Jamaica Rebellion: Opinion’ (1866) 41 Law Times: The Journal and Record of the Law and the Lawyers 201–2 (3 February 1866); ‘The Jamaica Inquiry’ (1866) 20 Law Magazine and Law Review; or, Quarterly Journal of Jurisprudence 326, 329–42. For commentary on the opinion, see ‘Legal Topics of the Week’ (1866) 41 Law Times: The Journal and Record of the Law and the Lawyers 163–4 (20 January 1866). Counsel appointed by the Jamaica Committee were permitted to appear before the Royal Commission. The Committee’s solicitors, Messrs Shaen and Roscoe, briefed Mr T Horne Payne, Mr Gorrie and Mr Phillippo — the latter a member of the English Bar practising in Jamaica: (1866) 41 Law Times: The Journal and Record of the Law and the Lawyers 125 (6 January 1866); Kostal, above n 47, 77–8.
[75] A V Dicey, A Digest of the Law of England with Reference to the Conflict of Laws (1st ed, 1896). Dicey also authored Introduction to the Study of the Law of the Constitution (1st ed, 1885).
[76] For a detailed discussion of the part played by the members of the two groups, see Dutton, In Search of Edward John Eyre, above n 35, chs 11–12; Semmel, above n 43, ch 5; Kostal, above n 47, ch 3.
[77] See below Part II(D).
[78] The Times (London), 16 December 1865, 9. See also The Times (London), 30 November 1865, 8; The Times (London), 2 December 1865, 8; The Times (London), 4 January 1866, 8. See The Times (London), 29 November 1865, 8, where it was noted that Eyre was ‘eminently kind, generous and just’ towards the Australian Aborigines.
[79] The Times (London), 27 January 1866, 8. Similarly, when reporting the proceedings at Gordon’s trial, it was noted that ‘there was no sufficient proof of Gordon’s guilt’: The Times (London), 25 January 1866, 8.
[80] The Times (London), 19 March 1866, 8. For commentary on the Report of the Royal Commission, see The Times (London), 13 April 1866, 9; The Times (London), 1 May 1866, 11; The Times (London), 19 June 1866, 11. For commentary on the decision of the Bow Street magistrate to indict Eyre under the Criminal Jurisdiction Act 1802, 42 Geo 3, c 85, see The Times (London), 30 June 1866, 8; The Times (London), 13 October 1866, 6; The Times (London), 16 May 1868, 9. See also below n 121 and accompanying text. As reported in The Times (London), 4 June 1868, 8, after the Grand Jury finally acquitted him, the newspaper speculated on Eyre’s real punishment:
In fact, the trial has only begun, and will never end. Governor Eyre will always be in court, for not even the stern functionary who relieves the worst criminals from their penalties and pains will stay the interminable pleadings for and against him. In our humble opinion, he is not to be envied even for his present and, as we sincerely hope, final escape from his legal persecutors. Two years in a healthy gaol, or the payment of a thousand pounds, are a trifle compared with a position by the side of Nero, Colonel Kirk, Judge Jeffreys, Claverhouse, the Duke of Cumberland, and similar notorieties, in books for the young and religious periodicals.
[81] See The Times (London), 20 June 1866, 9; The Times (London), 30 June 1866, 8; The Times (London), 20 July 1866, 9; The Times (London), 13 October 1866, 6; The Times (London), 16 May 1868, 9. See also a comment on the prosecution of Nelson and Brand: The Times (London), 8 February 1867, 8.
[82] The Colonial Standard, and Jamaica Despatch (Kingston), 24 October 1865.
[83] The Colonial Standard, and Jamaica Despatch (Kingston), 19 January 1867. See also the editorial in The Colonial Standard, and Jamaica Despatch (Kingston), 26 June 1868.
[84] The Morning Journal (Kingston), 16 October 1865.
[85] The Morning Journal (Kingston), 25 October 1865.
[86] See, eg, The Morning Journal (Kingston), 26 December 1865; The Morning Journal (Kingston), 27 December 1865.
[87] The Morning Journal (Kingston), 16 July 1866.
[88] See, eg, The Morning Journal (Kingston), 14 February 1867; The Morning Journal (Kingston), 30 April 1867; The Morning Journal (Kingston), 29 June 1868.
[89] ‘Governor Eyre’ (1867) 42 Law Times: The Journal and Record of the Law and the Lawyers 181–2 (5 January 1867). See also ‘Legal Topics of the Week’ (1866) 41 Law Times: The Journal and Record of the Law and the Lawyers 113 (30 December 1865); ‘Legal Topics of the Week’ (1866) 41 Law Times: The Journal and Record of the Law and the Lawyers 125 (6 January 1866); ‘Mr Eyre and Trial by Jury’ (1867) 42 Law Times: The Journal and Record of the Law and the Lawyers 321–2 (23 February 1867); (1868) 44 Law Times: The Journal and Record of the Law and the Lawyers 343 (7 March 1868).
[90] (1865) 10 Solicitors’ Journal and Reporter 70 (25 November 1865). The Earl of Strafford was Charles I’s Chief Minister during the period when he governed without Parliament (1629–40): see C P Hill, Who’s Who in Stuart Britain (revised ed, 1988) 68–74.
[91] (1866) 10 Solicitors’ Journal and Reporter 286 (27 January 1866). Lord William Russell was murdered in his sleep in 1840 and his valet, François Courvoisier, confessed and was tried and executed for the crime, although the evidence against him was purely circumstantial: see David Mellinkoff, The Conscience of a Lawyer (1973).
[92] (1866) 10 Solicitors’ Journal and Reporter 849 (7 July 1866).
[93] (1868) 12 Solicitors’ Journal and Reporter 373 (7 March 1868). The Law Magazine and Law Review reflected on its role in a similar vein: see ‘The Jamaica Inquiry’ (1866) 20 Law Magazine and Law Review; or, Quarterly Journal of Jurisprudence 326.
[94] (1868) 12 Solicitors’ Journal and Reporter 373 (7 March 1868).
[95] The Representation of the People Act 1867, 30 & 31 Vict, c 102.
[96] See Semmel, above n 43, 57–9, 71–2.
[97] Ibid 81–5; Dutton, In Search of Edward John Eyre, above n 35, 120–1, 133. The mobilisation of the working class continued in the lead up to and following electoral reform: see ibid 96–8,
132–3, 136–9. The editorial in The Colonial Standard, and Jamaica Despatch (Kingston), 27 May 1867 — written after the Grand Jury had dismissed the indictment against Nelson and Brand (see below nn 108–12 and accompanying text) — questioned whether ‘the late meetings in the London Parks, would have been held in spite of the Government proclamation’ without Cockburn CJ’s ruling on the nature and scope of martial law as delivered to the Grand Jury.
[98] See Semmel, above n 43, 133–4; ‘The Two Rebellions’, The Times (London), 1 February 1866, 7, reprinted from Blackwood’s Magazine. For a report of the Clerkenwell explosion, see The Times (London), 14 December 1867, 6.
[99] See, eg, ‘Reg v Eyre’ (1870) 49 Law Times: The Journal and Record of the Law and the Lawyers 160 (2 July 1870), where it was noted:
Everyone knows the uproar that was made in the case of Gordon, on account of his having been taken out of the district, although at the very time we were taking Fenians here, and sending them over to be tried in Ireland, for acts done there, and punishable by a more severe law than exists here.
[100] Semmel, above n 43, 133.
[101] Ibid 20–2. Eyre himself drew parallels with the Indian Mutiny in his speech opening the session of the Jamaica Legislative Assembly on 7 November 1865: ‘The Insurrection in Jamaica’, The Times (London), 29 November 1865, 9, reporting material from The Jamaica Guardian (Kingston), 8 November 1865. See also The Times (London), 18 November 1865, 8, where it was suggested that the mutiny in Jamaica had a greater impact on public opinion than the Indian Mutiny.
[102] Semmel, above n 43, 59–60. In discussing the situation in Jamaica, The Times referred to ‘[t]he late convulsions in America’: The Times (London), 30 November 1865, 8.
[103] See Albert Castel, The Presidency of Andrew Johnson (1979) 24–5, 34–5, 167–95.
[104] See (1866) 10 Solicitors’ Journal and Reporter 250 (20 January 1866), criticising a leading article in The Times (London), 8 January 1866, 8, which said that the executive had the right to provide for the safety of society by dispensing with the ordinary processes of law and illustrated this by reference to the activities of President Johnson. The Solicitors’ Journal and Reporter opined that ‘[i]t was no part of the duty of President Johnson to punish one murder by another.’
[105] Haiti was mentioned by Eyre in his speech to the Legislative Assembly on 7 November 1865: see above n 101. See also The Times (London), 3 November 1865, 7; The Times (London), 4 November 1865, 9; The Times (London), 20 November 1865, 8.
[106] The Morning Journal (Kingston), 16 October 1865. See also Semmel, above n 43, 50.
[107] See The Times (London), 3 March 1866, 9; Dutton, In Search of Edward John Eyre, above n 35, 84.
[108] By October 1866, the Jamaica Committee had issued an address saying that it had resolved to submit Eyre’s conduct to judicial investigation and appealing to the public for funds to support them: see ‘The Jamaica Committee and Governor Eyre’ (1866) 41 Law Times: The Journal and Record of the Law and the Lawyers 866–7 (20 October 1866). The prosecution was brought in the names of John Stuart Mill and Peter Taylor. The Law Times regretted the shortcomings in the criminal prosecution system that made it necessary for the proceedings to take the form of a private prosecution, commenting that ‘[i]t is a disgrace to our jurisprudence that public servants should be prosecuted by private individuals for official misdeeds’: ‘Legal Topics of the Week’ (1866) 42 Law Times: The Journal and Record of the Law and the Lawyers 21 (10 November 1866). Note that Nelson is sometimes referred to as Colonel Nelson in contemporary reports despite being promoted to the position of Brigadier‑General: see Dutton, In Search of Edward John Eyre, above n 35, 93–4.
[109] It seems that Nelson was within the jurisdiction of the Bow Street court only because he had taken his son to London to put him into college and had visited the United Services Club: Daily Gleaner (Kingston), 13 March 1867.
[110] See Dutton, In Search of Edward John Eyre, above n 35, 135, in which it is explained that: ‘The “charge” is a statement of the law in the case, usually accompanied by a recommendation to the jury to bring in “a true Bill”, that will send the case for trial, or a “no true Bill”, in which event the case is discharged.’
[111] See ‘The Jamaica Prosecutions’ (1867) 42 Law Times: The Journal and Record of the Law and the Lawyers 455 (13 April 1867). For comment on Cockburn CJ’s charge, see ‘Martial Law: Charge of the Lord Chief Justice of England to the Grand Jury, in the Case of The Queen v Nelson and Brand’ (1867) 23 Law Magazine and Law Review; or, Quarterly Journal of Jurisprudence 222; ‘The Jamaica Prosecutions’ (1867) 11 Solicitors’ Journal and Reporter
567–8 (20 April 1867); The Times (London), 11 April 1867, 8.
[112] (1867) 11 Solicitors’ Journal and Reporter 563 (20 April 1867). In the words of W F Finlason, a barrister who wrote four books on the Jamaica case,
not content with having delivered such a charge, he published it! Published it with all its cruel and extra‑judicial imputations, and uncharitable suggestions, published it to the world, although it was known that criminal proceedings were in contemplation against the Governor; and the whole tone and tendency of the charge were so exceedingly calculated to prejudice him.
W F Finlason, The History of the Jamaica Case: Being an Account, Founded upon Official Documents, of the Rebellion of the Negroes in Jamaica: The Causes Which Led to It, and the Measures Taken for Its Suppression; The Agitation Excited on the Subject, Its Causes and Its Character; and the Debates in Parliament, and the Criminal Prosecutions, Arising out of It (2nd ed, 1869) 499 (emphasis in original).
[113] The Morning Star (London), 1 April 1867, 4, which was clearly anti‑Eyre, suggested that Eyre had taken measures to evade justice by taking refuge in Shropshire: ‘[Eyre] took shelter under the protecting wing of the game-preserving squires of Shropshire, being perfectly assured that, with their ignorance and prejudices, he was safe.’ See also The Colonial Standard, and Jamaica Despatch (Kingston), 22 April 1867. However, Eyre’s solicitor had ‘given an assurance that [Eyre would] appear upon due notice’ at the Bow Street Police Court: The Times (London), 7 February 1867, 6.
[114] Stephen’s arguments are reviewed in some detail in The Times (London), 30 March 1867, 9. There were some lively exchanges between Stephen and the bench: see ‘Courts: Market Drayton Sessions’ (1867) 11 Solicitors’ Journal and Reporter 502 (30 March 1867). For instance, the Chairman, Sir Baldwin Leighton, told him to get on with the facts of the case instead of telling them what was their duty, and later complained of his abuse of Eyre by his ‘tone of voice’: at 502. Peter Taylor, one of the prosecutors of Eyre and a member of the Jamaica Committee, wanted to sit on the justices’ bench but was quite rightly prevented from doing so: ‘The Prosecution of Governor Eyre’ (1867) 42 Law Times: The Journal and Record of the Law and the Lawyers 438 (6 April 1867).
[115] See, eg, The Times (London), 18 April 1867, 6, defending the option of private prosecution but suggesting that there was a need for a public prosecuting authority. This need was not met in England until the creation of the Crown Prosecution Service by the Prosecution of Offences Act 1985 (UK) c 23.
[116] Dutton, In Search of Edward John Eyre, above n 35, 135; Semmel, above n 43, 149–50.
[117] Messrs Shaen and Roscoe furnished the Attorney‑General with a copy of Cockburn CJ’s charge ‘as being the latest and most complete authority upon the law involved in these proceedings’, a communication the Law Journal suggested was in very bad taste: (1867) 2 Law Journal 351 (2 August 1867). The Attorney in reply said that he was familiar with the charge. The Law Journal also commented that the Jamaica Committee had not tried the alternative of bringing an indictment before the Middlesex Grand Jury.
[118] See The Times (London), 28 February 1868, 6. For an account of the proceedings, see ‘Courts: Police Courts’ (1868) 12 Solicitors’ Journal and Reporter 363–4 (29 February 1868).
[119] Criminal Jurisdiction Act 1802, 42 Geo 3, c 85, preamble. Prosecution under this Act was foreshadowed by the Law Times in 1867: ‘The Legal Position of Mr Eyre’ (1867) 42 Law Times: The Journal and Record of the Law and the Lawyers 280 (9 February 1867).
[120] ‘Law Report’, The Times (London), 9 May 1868, 11.
[121] For comment as to whether a police‑magistrate could commit for trial before the Court of Queen’s Bench, see (1868) 12 Solicitors’ Journal and Reporter 514 (25 April 1868).
[122] See The Times (London), 21 May 1868, 12; Dutton, In Search of Edward John Eyre, above n 35, 137–9.
[123] Blackburn J’s charge is reproduced in full in W F Finlason (ed), Report of the Case of The Queen v Edward John Eyre on His Prosecution in the Court of Queen’s Bench, for High Crimes and Misdemeanours Alleged to Have Been Committed by Him in His Office as Governor of Jamaica; Containing the Evidence, (Taken from the Depositions), the Indictment, and the Charge of Mr Justice Blackburn, with the Subsequent Observations of the Lord Chief Justice (1868) 53–102. This text also contains a summary of the evidence and the indictment. For comment, see ‘Mr Justice Blackburn on Martial Law’ (1868) 3 Law Journal 384–5 (5 June 1868).
[124] See Finlason, Report of the Case of The Queen v Edward John Eyre, above n 123, 103; ‘Courts: Court of Queen’s Bench’ (1868) 12 Solicitors’ Journal and Reporter 673 (13 June 1868). Cockburn CJ also took the highly unusual step of asking The Times to publish an exchange of letters between Lush J and himself setting out what had happened: ‘The Case of Ex‑Governor Eyre’, The Times (London), 10 June 1868, 12.
[125] Finlason, Report of the Case of The Queen v Edward John Eyre, above n 123, 103–7. For a comment on the incident, see ‘The Lord Chief Justice of England and Mr Justice Blackburn’ (1868) 25 Law Magazine and Law Review; or, Quarterly Journal of Jurisprudence 256. The writer suggests that Blackburn J’s conduct was ‘a temporary aberration’ (at 264) and, rather condescendingly, suggests that it is explicable by reference to his Scottish origins (at 264):
Mr Justice Blackburn is no doubt an excellent lawyer and an able judge, but he possesses perhaps too much of the perfervidum ingenium of his countrymen, and there are times when, even with the wisest of our northern friends, this quality escapes for a short season from the prudence which in general directs its action.
For other comments, see (1868) 12 Solicitors’ Journal and Reporter 669 (13 June 1868); GH, Correspondence of the Profession, ‘The Jamaica Case’ (1868) 45 Law Times: The Journal and Record of the Law and the Lawyers 134 (13 June 1868); WOC, Correspondence, ‘Martial Law’ (1868) 3 Law Journal 481–4 (17 July 1868). The Times suggested that if Cockburn CJ had charged the jury, ‘a true bill must have been found against Mr Eyre in respect of the transfer of Gordon, and the question of his further responsibility must have come before a common jury’: The Times (London), 9 June 1868, 9.
[126] There are references to a civil action having been commenced before Phillips’s arrival in England, by Phillips and one Dr Robert G Bruce against Eyre and Nelson in the Court of Exchequer: see ‘Governor Eyre’ (1867) 42 Law Times: The Journal and Record of the Law and the Lawyers 181 (5 January 1867); Kostal, above n 47, 434. An application was made to Bramwell B for the action to be stayed until the plaintiffs had given security for costs because they were out of the jurisdiction. The Law Times reported that Bramwell B had ruled that the application was irregular and ordered it to be adjourned sine die: ‘Judge’s Chambers’ (1867) 42 Law Times: The Journal and Record of the Law and the Lawyers 243 (26 January 1867). However, the Law Times reported in its next issue that these proceedings had never taken place, basing their report on material that apparently emanated from the office of Messrs Shaen and Roscoe, solicitors to the Jamaica Committee: ‘Ex‑Governor Eyre’ (1867) 42 Law Times: The Journal and Record of the Law and the Lawyers 261 (2 February 1867). The action was ultimately abandoned so that a new lawsuit could be commenced in the Court of Queen’s Bench: Kostal, above n 47, 436.
[127] Phillips’ evidence to the Royal Commission was that he was ‘in the position of a gentleman’ and was ‘living off his own means’: Kostal, above n 47, 434 fn 10.
[128] Phillips had apparently commenced a civil action in Jamaica in 1866, but abandoned it: Dutton, In Search of Edward John Eyre, above n 35, 140.
[129] Phillips was one of those who gave evidence before the Bow Street Police Court in the prosecution of Eyre for high crimes and misdemeanours: see Finlason, Report of the Case of The Queen v Edward John Eyre, above n 123, 9–12. In late 1868, Charles Buxton, who had parted company with the Jamaica Committee over his refusal to take part in the further prosecution of Eyre, offered Phillips money if he would agree to abandon his lawsuit. However, Phillips refused: see Kostal, above n 47, 437, citing Pall Mall Gazette (London), 4 November 1868, 5. Kostal comments:
Although it was far from certain that he would ultimately prevail in his case, Phillips refused. The tempting inference here is that for this plaintiff the lawsuit had exceptional or symbolic importance. More than money, this obviously proud black gentleman craved public vindication of his rights and privileges as a British subject.
[130] Chamerovzow was the treasurer of the fund, which was supported by Mill and Taylor on an unofficial basis: Dutton, In Search of Edward John Eyre, above n 35, 140. ‘The Persecution of Governor Eyre’ (1867) 42 Law Times: The Journal and Record of the Law and the Lawyers 240–1 (26 January 1867) commented:
The only rational conclusion is, that they have some instigators and backers, and seeing that the solicitors are the solicitors to the Jamaica Committee, it was a reasonable conclusion that the actions were a part of the same system of persecution which tries to take Governor Eyre’s life with one hand, and, if it fails in that, resolves to ruin him with the other.
In giving evidence, Phillips confirmed this, noting that ‘I have brought an action against Mr Eyre. There is a fund formed to enable me to bring the action’: see Finlason, Report of the Case of The Queen v Edward John Eyre, above n 123, 11. However, in Letter to the Editor, The Times (London), 21 January 1867, 10, Messrs Shaen and Roscoe, the solicitors of the Jamaica Committee, stressed that the Jamaica Committee had no official connection with Phillips or his action:
Two private gentlemen, who were illegally arrested, and one of whom was flogged, but against whom no shadow of evidence has ever been produced, have, without any connexion with or assistance from the Jamaica Committee, commenced actions for damages against Mr Eyre and Colonel Nelson, and have intrusted their cases to the solicitors who are also instructed by the Jamaica Committee. … The only proceeding with which the Jamaica Committee has anything whatever to do is the intended indictment …
[131] See Phillips v Eyre (1869) LR 4 QB 225.
[132] According to the evidence of Alexander Phillips, this in fact seems to have been Up Park Camp: Finlason, Report of the Case of The Queen v Edward John Eyre, above n 123, 10.
[133] It seems that Phillips was in danger of his life: see ‘An Episode of the Morant Bay Tragedy’, The Morning Journal (Kingston), 4 April 1868, which quotes an article in the Anti‑Slavery Reporter noting that Phillips was conveyed to the ‘Golgotha’ at Morant Bay. It also quotes a letter from Colonel Fyfe, one of the army officers, saying that the local people had been prepared for his execution (even though he had not been tried at this point) and that they asked prospectively for his sentence to be commuted. Phillips was ultimately released without trial. As reported in The Colonial Standard, and Jamaica Despatch (Kingston), 20 June 1868, when committing Eyre for trial before the Court of Queen’s Bench on 20 May 1868, Magistrate Vaughan said that he could not refrain from observing that Phillips was taken to Morant Bay without charge, detained there for a considerable time, and then released without any sort of trial.
[134] Phillips v Eyre (1869) LR 4 QB 225, 225–6.
[135] Ibid 228. It was this argument that provided the basis for the discussion of the choice of law issue.
[136] Ibid 228–9.
[137] The Court was sitting in banco to consider the issues of law raised by the demurrer. Such proceedings would normally have been heard by the full court of four judges but Hannen J, having given advice at an earlier stage of the case when at the bar, took no part in the proceedings: ‘Sayings and Doings of the Courts: Court of Queen’s Bench’ (1868) 46 Law Times: The Journal and Record of the Law and the Lawyers 47 (21 November 1868). Montague Smith J had earlier refused an application for leave to examine Eyre on interrogatories: ‘Judges’ Chambers’, The Times (London), 26 June 1868, 10. Blackburn J had ruled that the case was too important to be tried before two judges: ‘Law Report’, The Times (London), 29 June 1868, 11.
[138] Cockburn CJ’s decision was conveyed to the Jamaican public by The Colonial Standard, and Jamaica Despatch (Kingston), 22–23 February 1869, which expressed a hope, now that the Court of Queen’s Bench had decided in Eyre’s favour, that he would be allowed to be left in peace, given that the many ‘prosecutions and persecutions’ of his ‘enemies’ had been thwarted.
[139] See Phillips v Eyre (1869) LR 4 QB 225, 239.
[140] Phillips v Eyre (1870) LR 6 QB 1, 17. In support, Willes J cited numerous Acts of Indemnity passed by the English Parliament.
[141] Ibid 20–1. Willes J’s ruling may only have effect in relation to civil proceedings: Roberts‑Wray, above n 48, 398. On the criterion of repugnancy, see generally McPherson, The Reception of English Law Abroad, above n 48, 16–17, 160–9.
[142] The 1698 Act is the Governors of Plantations Act 1698, 11 Wm 3, c 12 — which Willes J refers to as the Governors Act, 11 & 12 Wm 3, c 12: see Phillips v Eyre (1870) LR 6 QB 1, 21. The 1802 Act is the Criminal Jurisdiction Act 1802, 42 Geo 3, c 85: see above n 119 and accompanying text.
[143] Phillips v Eyre (1870) LR 6 QB 1, 22 (Willes J). In support, Willes J cites Dimes v Proprietors of the Grand Junction Canal [1852] EngR 789; (1852) 3 HL Cas 759; 10 ER 301.
[144] Phillips v Eyre (1870) LR 6 QB 1, 22 (Willes J).
[145] Ibid 23.
[146] The same point had been made by Cockburn CJ at first instance: see Phillips v Eyre (1869) LR 4 QB 225, 242–4. On appeal, Willes J cited two prominent examples in support: see ibid 23–5. The first was the case of Captain Denman, who had liberated slaves in Sierra Leone and whose acts were subsequently ratified by the government: see Buron v Denman [1867] UKLawRpExch 9; (1848) 2 Ex 167; 154 ER 450. The second was the legislation validating marriages celebrated in Ireland by Presbyterian ministers and others who had not had an episcopal ordination: see Marriages (Ireland) Act 1844 (Imp) 7 & 8 Vict, c 81, s 83. Such marriages had been ruled void by the decision of the House of Lords in R v Millis [1844] EngR 391; (1844) 10 Cl & F 534; 8 ER 844.
[147] See, eg, ‘Power of Colonial Legislatures’ (1869) 46 Law Times: The Journal and Record of the Law and the Lawyers 303 (20 February 1869). See also The M Moxham [1875] UKLawRpPro 23; (1875) 1 PD 43, 50 (Phillimore J) noted at below n 205 and accompanying text. The comment on the appeal, ‘Reg v Eyre’ (1870) 49 Law Times: The Journal and Record of the Law and the Lawyers 160 (2 July 1870), is devoted to martial law.
[148] The controversy related to the activities of Boothby J of the Supreme Court of South Australia, who struck down many South Australian statutes on the ground of alleged repugnancy to English statutes or the common law: see Alex C Castles, An Australian Legal History (1982) 405–10.
[149] (1870) LR 6 QB 1, 20 (Willes J).
[150] See The Times (London), 24 June 1870, 9.
[151] Phillips v Eyre (1870) LR 6 QB 1, 28.
[152] John Westlake, A Treatise on Private International Law, or the Conflict of Laws, with Principal Reference to Its Practice in the English and Other Cognate Systems of Jurisprudence (1st ed, 1858) 222, 223 fn l. Westlake cites Cope v Doherty [1858] EngR 843; (1858) 4 K & J 367, 384; 70 ER 154, 161 (Wood V‑C). In fact, this dictum is concerned with the distinction between matters of substance and matters of procedure.
[153] See, eg, Charles Brocher, Nouveau traité de droit international privé au double point de vue de la théorie et de la pratique (1876) 315, cited by John Westlake, A Treatise on Private International Law, with Principal Reference to Its Practice in England (3rd ed, 1890) 237.
[154] Friedrich Carl von Savigny, Private International Law: A Treatise on the Conflict of Laws, and the Limits of Their Operation in Respect of Place and Time (William Guthrie trans, 1869 ed) 205 fn z2 [trans of: Systems des heutigen rőmischen Rechts (1840–49) vol 8], citing Carl Ludwig von Bar, Das internationale Privat‑ und Strafrecht (1862) 243, 317.
[155] Von Savigny, above n 154, 205 (citations omitted).
[156] Ibid 206–7.
[157] [1774] EngR 104; (1775) 1 Cowp 161; 98 ER 1021.
[158] See also Rafael v Verelst (1775) 2 Wm Bl 983, 998; [1746] EngR 421; 96 ER 579, 581 (De Grey CJ). Mansfield CJ refers to this case (though not by name) in Mostyn v Fabrigas [1774] EngR 104; (1775) 1 Cowp 161, 180–1; [1774] EngR 104; 98 ER 1021, 1031–2.
[159] [1674] EngR 113; (1674) 3 Swans 604; 36 ER 992. See also the earlier proceedings in the Privy Council: Blad’s Case [1673] EngR 173; (1673) 3 Swans 603; 36 ER 991.
[160] Alexander N Sack, ‘Conflicts of Laws in the History of the English Law’ in Law: A Century of Progress 1835–1935 (1937) vol 3, 342, 391.
[161] Mostyn v Fabrigas [1774] EngR 104; (1775) 1 Cowp 161, 173; [1774] EngR 104; 98 ER 1021, 1028.
[162] See also Wey v Rally (1704) 6 Mod 195; 87 ER 948. In a striking preview of Phillips v Eyre, Powell J refers to an action for false imprisonment in Jamaica being brought in England against the Governor of Jamaica, where the Jamaican laws had been ‘given in evidence’: at 195; 948. This case (albeit referred to as Way v Yally) was cited in support of the proposition that the best way to establish a foreign law was to prove it as fact: Mostyn v Fabrigas [1774] EngR 104; (1775) 1 Cowp 161, 175; [1774] EngR 104; 98 ER 1021, 1029 (Mansfield CJ).
[163] [1746] EngR 421; (1775) 2 Wm Bl 983; 96 ER 579.
[164] [1836] EngR 690; (1836) 2 Bing NC 781; 132 ER 301.
[165] Ibid 795; 306 (Tindal CJ).
[166] (1860) Bell CC 220; [1860] EngR 226; 169 ER 1236.
[167] [1813] EngR 439; (1813) 1 Dods 290; 165 ER 1315.
[168] (1858) 1 K & J 367; 70 ER 154.
[169] [1862] EngR 719; (1862) 1 Hurl & C 219; 158 ER 865.
[170] Ibid 233–4 (Wightman J), 235 (Williams J), 236 (Crompton J), 236 (Willes J), 237 (Blackburn J); 872 (Wightman J), 872 (Williams J), 873 (Crompton J), 873 (Willes J), 873 (Blackburn J).
[171] Kurt Lipstein, ‘Phillips v Eyre, A Re‑Interpretation’ in Ernst von Caemmerer, Soia Mentschikoff and Konrad Zweigert (eds), Ius Privatum Gentium (1969) vol 1, 411, 415 fn 25.
[172] Scott v Lord Seymour [1862] EngR 719; (1862) 1 Hurl & C 219, 234; [1862] EngR 719; 158 ER 865, 872.
[173] Ibid 237; 873.
[174] Ibid 235 (Williams J), 235 (Crompton J), 236 (Willes J); 872 (Williams J), 872 (Crompton J), 873 (Willes J).
[175] The Halley (1867) LR 2 Adm & Eccl 3.
[176] Liverpool, Brazil, and River Plate Steam Navigation Co Ltd v Benham; The Halley [1868] UKLawRpPC 11; (1868) LR 2 PC 193 (‘The Halley’).
[177] The Halley (1867) LR 2 Adm & Eccl 3, 3–4.
[178] Ibid 10.
[179] Ibid 13–14.
[180] Ibid 22–3.
[181] This reading of the case was recognised by Guthrie in his 1869 edition of von Savigny’s text: von Savigny, above n 154, 205 fn z2.
[182] Liverpool, Brazil, and River Plate Steam Navigation Co Ltd v Benham; The Halley [1868] UKLawRpPC 11; (1868) LR 2 PC 193, 204. Selwyn LJ was, however, prepared to concede that it might be necessary to refer to foreign law to determine such matters as ‘the rule of the road’: at 203. This process is now known as relying on foreign law as a datum: see Lipstein, ‘Phillips v Eyre, A Re‑Interpretation’, above n 171, 420–1; Sykes and Pryles, above n 18, 234.
[183] Phillips v Eyre (1869) LR 4 QB 225, 239.
[184] See, eg, Combe v Edwards [1877] UKLawRpPro 38; (1877) 2 PD 354.
[185] [1673] EngR 173; (1673) 3 Swans 603; 36 ER 991. See above nn 159–66 and accompanying text.
[186] See above nn 19–22 and accompanying text.
[187] Collins, Dicey and Morris on the Conflict of Laws, above n 18, vol 2, 1480–1.
[188] Cheshire and North, above n 12, 262 fn 1.
[189] See ibid 264–6; Collins, Dicey and Morris on the Conflict of Laws, above n 18, vol 2, 1489–91.
[190] See Cheshire and North, above n 12, 272–3; Collins, Dicey and Morris on the Conflict of Laws, above n 18, vol 2, 1492–4.
[191] [1897] UKLawRpKQB 90; [1897] 2 QB 231.
[192] See above n 5 and accompanying text.
[193] See Lipstein, ‘Phillips v Eyre, A Re‑Interpretation’, above n 171, especially at 421–2.
[195] Ibid 343–4.
[196] See, eg, Hugh le Pape v Merchants of Florence in London (1280–81), reported in Selden Society: Select Cases concerning the Law Merchant (1930) vol 2, 34–9.
[197] See, eg, Mostyn v Fabrigas [1774] EngR 104; (1775) 1 Cowp 161, 161; [1774] EngR 104; 98 ER 1021, 1022, where it was pleaded that John Mostyn made an assault on Anthony Fabrigas ‘at Minorca, (to wit) at London aforesaid, in the parish of St Mary le Bow, in the ward of Cheap’.
[198] Ibid 176–81; 1029–32 (Mansfield CJ).
[199] Sack, writing in 1935, pointed out that in a few areas, such as divorces, the courts were still applying English law exclusively: Sack, above n 160, 398, citing Le Mesurier v Le Mesurier [1895] UKLawRpAC 34; [1895] AC 517. This, of course, was written prior to later developments such as Travers v Holley [1953] P 246 and Indyka v Indyka [1969] 1 AC 33.
[200] See above nn 159–66 and accompanying text.
[201] Lipstein, ‘Phillips v Eyre, A Re‑Interpretation’, above n 171, 426, also makes the point that Willes J’s reliance on the subsequent Act of Indemnity emphasises the particular function of the lex loci delicti, which is to provide a source of possible justification. Reference to the lex loci as a choice of law rule must necessarily be to the law as it stood at the time the wrong was committed, which would make reliance on subsequent indemnity legislation difficult. On conflict of laws in time, see Sir Lawrence Collins (ed), Dicey, Morris and Collins on the Conflict of Laws (14th ed, 2006) vol 1, ch 3 and works there cited.
[202] (1869) 4 Law Journal (Notes of Cases) 31–2 (5 February 1869). Instead the notes in this issue deal with the Overend‑Gurney case (the latest company scandal), languor in the common law courts, actions for seduction and a petition in favour of building the new Law Courts on the Thames Embankment site. (They were ultimately built on the alternative Carey Street site fronting on Fleet Street.)
[203] (1870) 5 Law Journal (Notes of Cases) 178 (1 July 1870). The topics of discussion instead concentrated on the debates on the Married Women’s Property Bill, and the liability of husbands for the spending habits of their wives, a topic provoked by the case of Major Mercer, whose wife, left in England while her husband was serving in India, had spent far beyond her allowance, resulting in the Major being sued by her creditors.
[204] Edmund H Bennett (ed), Commentaries on the Conflict of Laws, Foreign and Domestic, in Regard to Contracts, Rights, and Remedies, and Especially in Regard to Marriages, Divorces, Wills, Successions, and Judgments (7th ed, 1872) 24–5. This remained the rule in the United States until the advent of the proper law doctrine in the 1960s: see below nn 212–13 and accompanying text.
[205] [1875] UKLawRpPro 23; (1875) 1 PD 43, 50.
[206] Ibid.
[207] [1868] UKLawRpPC 11; (1868) LR 2 PC 193.
[208] The M Moxham [1875] UKLawRpPro 23; (1875) 1 PD 43, 51 (Phillimore J).
[209] See, eg, The M Moxham [1876] UKLawRpPro 28; (1876) 1 PD 107, 111 (Mellish LJ), 115 (Baggallay JA); Carr v Fracis Times & Co [1901] UKLawRpAC 28; [1902] AC 176. For late 19th and early 20th century treatises, see John Alderson Foote, Foreign and Domestic Law: A Concise Treatise on Private International Jurisprudence, Based on the Decisions in the English Courts (2nd ed, 1890) 476–7; Dicey, A Digest of the Law of England with Reference to the Conflict of Laws, above n 75, 659–61; T Baty, Polarized Law (1914) 50–1; G C Cheshire, Private International Law (1935) 215–18. Compare the slightly less forthcoming accounts in Friedrich Carl von Savigny, Private International Law, and the Retrospective Operation of Statutes: A Treatise on the Conflict of Laws, and the Limits of Their Operation in Respect of Place and Time (William Guthrie trans, 1880 ed) 253–4 fn z2 [trans of: Systems des heutigen rőmischen Rechts (1840–49) vol 8]; Westlake, A Treatise on Private International Law, above n 153, 237–8.
[210] [1948] ScotCS CSIH_4; 1949 SC 110.
[211] Morris, ‘Torts in the Conflict of Laws’, above n 12.
[212] J H C Morris, ‘The Proper Law of a Tort’ (1951) 64 Harvard Law Review 881.
[213] This process was commenced by Babcock v Jackson, 12 NY 2d 473 (1963). The ‘proper law of the tort’ was described by Lord Denning MR in Boys v Chaplin [1967] EWCA Civ 3; [1968] 2 QB 1, 20 as ‘the law of the place which has the most significant contacts with the matter in dispute’.
[215] Boys v Chaplin [1967] EWCA Civ 3; [1968] 2 QB 1, 20 (Lord Denning MR), 34–5 (Diplock LJ).
[216] This was the approach of Lord Wilberforce in Boys v Chaplin [1971] AC 356, 388–9, which has since found general acceptance: see above n 7.
[217] Morris, The Conflict of Laws, above n 12, 256.
[218] Ernest G Lorenzen, ‘Tort Liability and the Conflict of Laws’ (1931) 47 Law Quarterly Review 483.
[219] See Moffatt Hancock, ‘Torts in the Conflict of Laws: The First Rule in Phillips v Eyre’ (1940) 3 University of Toronto Law Journal 400; Moffatt Hancock, ‘A Problem in Damages for Tort in the Conflict of Laws’ (1944) 22 Canadian Bar Review 843.
[220] See A H Robertson, ‘The Choice of Law for Tort Liability in the Conflict of Laws’ (1940) 4 Modern Law Review 27.
[221] See John D Falconbridge, ‘Torts in the Conflict of Laws’ (1945) 23 Canadian Bar Review 309.
[222] See Morris, ‘Torts in the Conflict of Laws’, above n 12; Morris, ‘The Proper Law of a Tort’, above n 212.
[223] For articles published between 1950 and 1970, see further Fowler Harper, ‘Tort Cases in the Conflict of Laws’ (1955) 33 Canadian Bar Review 1155; J A Clarence Smith, ‘Torts and the Conflict of Laws’ (1957) 20 Modern Law Review 447; J G Castel, ‘Canadian Private International Law Rules in the Field of Civil Responsibility’ (1958) 18 Revue de Barreau 465; S Strömholm, ‘A Recent Contribution to the Problem of Torts in the Conflict of Laws’ (1964) 13 International and Comparative Law Quarterly 691; Gerber, ‘Tort Liability in the Conflict of Laws’ (Pt I), above n 9; P Gerber, ‘Tort Liability in the Conflict of Laws’ (Pt II) (1966) 40 Australian Law Journal 73; J L R Davis, ‘Conflict of Laws — Torts — An Unjustifiable Extension of the Rule in Phillips v Eyre’ (1967) 41 Australian Law Journal 213; P R H Webb, ‘Tort in the Conflict of Laws (Based on Boys v Chaplin)’ (1967) 16 International and Comparative Law Quarterly 1145; Albert A Ehrenzweig, ‘The Not So “Proper” Law of a Tort: Pandora’s Box’ (1968) 17 International and Comparative Law Quarterly 1; R H Graveson, ‘Towards a Modern Applicable Law in Tort’ (1969) 85 Law Quarterly Review 505; J D McClean, ‘Torts in the Conflict of Laws’ (1969) 43 Australian Law Journal 183.
[224] Morris, The Conflict of Laws, above n 12, 256.
[225] For a discussion of the difficulties that arise from the use of such technology across jurisdictional borders with different defamation laws, see Peter Handford, ‘Defamation and the Conflict of Laws in Australia’ (1983) 32 International and Comparative Law Quarterly 452.
[226] News of the Morant Bay insurrection took about a month to reach England.
[227] It is, of course, possible to drive from Northern Ireland into the Republic of Ireland.
[228] Lipstein, ‘Phillips v Eyre, A Re‑Interpretation’, above n 171, 411 (citations omitted). See further Max Rheinstein, ‘The Place of Wrong: A Study in the Method of Case Law’ (1944) 19 Tulane Law Review 165.
[229] On Lipstein, see Christopher Forsyth, ‘Kurt Lipstein (1909–)’ in Jack Beatson and Reinhard Zimmermann (eds), Jurists Uprooted: German‑Speaking Émigré Lawyers in Twentieth‑Century Britain (2004) 463; Christian von Bar, ‘Kurt Lipstein — The Scholar and the Man’ in Jack Beatson and Reinhard Zimmermann (eds), Jurists Uprooted: German‑Speaking Émigré Lawyers in Twentieth‑Century Britain (2004) 749; K Lipstein, ‘Acta et Agenda’ [1977] Cambridge Law Journal 47. Lipstein authored many works on conflict of laws: see especially K Lipstein, ‘The General Principles of Private International Law’ (1973) 135 Recueil des Cours: Collected Courses of the Hague Academy of International Law 97. On Rheinstein, see Konrad Duden, ‘Max Rheinstein — Leben und Werk’ in Ernst von Caemmerer, Soia Mentschikoff and Konrad Zweigert (eds), Ius Privatum Gentium: Festschrift für Max Rheinstein zum 70 Geburtstag am 5 Juli 1969 (1969) vol 1, 1; Mary Ann Glendon, ‘The Influence of Max Rheinstein on American Law’ in Marcus Lutter, Ernst C Stiefel and Michael H Hoeflich (eds), Der Einfluß deutscher Emigranten auf die Rechtsentwicklung in den USA und in Deutschland (1993) 171; Kyle Graham, ‘The Refugee Jurist and American Law Schools, 1933–1941’ (2002) 50 American Journal of Comparative Law 777. (My thanks to Professor John Langbein for assistance with references on Rheinstein.) Other émigré German scholars who made a distinctive contribution to conflict of laws in the common law included Clive M Schmitthoff, F A Mann and Martin Wolff: see John N Adams, ‘Clive M Schmitthoff (1903–1990)’ in Jack Beatson and Reinhard Zimmermann (eds), Jurists Uprooted: German‑Speaking Émigré Lawyers in Twentieth‑Century Britain (2004) 367; Lawrence Collins, ‘F A Mann (1907–1991)’ in Jack Beatson and Reinhard Zimmermann (eds), Jurists Uprooted: German‑Speaking Émigré Lawyers in Twentieth‑Century Britain (2004) 381; Gerhard Dannemann, ‘Martin Wolff (1872–1953)’ in Jack Beatson and Reinhard Zimmermann (eds), Jurists Uprooted: German‑Speaking Émigré Lawyers in Twentieth‑Century Britain (2004) 441.
[230] See Mark Freedland, ‘Otto Kahn‑Freund (1900–1979)’ in Jack Beatson and Reinhard Zimmermann (eds), Jurists Uprooted: German‑Speaking Émigré Lawyers in Twentieth‑Century Britain (2004) 299. For an important contribution on the conflict of laws with regard to tort, see O Kahn‑Freund, ‘Delictual Liability and the Conflict of Laws’ (1969) 124 Recueil des Cours 1.
[231] Arthur Berriedale Keith joined Dicey as the editor for the 3rd edition in 1922, and was sole editor of the 4th edition of 1927 and the 5th edition of 1932. The 6th edition of the work, published in 1949 after a 17‑year gap, was edited by a team headed by John Morris, with Zelman Cowen editing the torts chapter. The 6th edition was also the first time the work was entitled Dicey’s Conflict of Laws, having previously been A Digest of the Law of England with Reference to the Conflict of Laws.
[232] Kahn‑Freund continued as an editor of the 8th and 9th editions in which the authors of chapters were not specifically identified. From the 8th edition, the work was entitled Dicey and Morris on the Conflict of Laws. The 14th edition published in 2006 was marked by the addition of Sir Lawrence Collins as a co‑author: Collins, Dicey, Morris and Collins on the Conflict of Laws, above n 201.
[233] J H C Morris (ed), Dicey’s Conflict of Laws (6th ed, 1949) xiii. See also Peter North, ‘Private International Law in Twentieth‑Century England’ in Jack Beatson and Reinhard Zimmermann (eds), Jurists Uprooted: German‑Speaking Émigré Lawyers in Twentieth‑Century Britain (2004) 483, 514–15.
[234] See, eg, Briggs, above n 21; P B Carter, ‘The Private International Law (Miscellaneous Provisions) Act 1995’ (1996) 112 Law Quarterly Review 190; Alan Reed, ‘The Private International Law (Miscellaneous Provisions) Act 1995 and the Need for Escape Devices’ (1996) 15 Civil Justice Quarterly 305; C G J Morse, ‘Torts in Private International Law: A New Statutory Framework’ (1996) 45 International and Comparative Law Quarterly 888.
[235] The 2006 edition is entitled Dicey, Morris and Collins on the Conflict of Laws: see above n 232. For a recent example of the potential problems to which the Act gives rise, see Harding v Wealands [2006] EWCA Civ 524; [2007] 2 AC 1.
[236] Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the Law Applicable to Non‑Contractual Obligations (Rome II) [2007] OJ L 199/40. For commentary on this regulation, see Sir Lawrence Collins (ed), Dicey, Morris and Collins on the Conflict of Laws: First Supplement to the Fourteenth Edition (14th ed, 2006) 183–224.
[237] See Janet Walker, ‘“Are We There Yet?” Towards a New Rule for Choice of Law in Tort’ (2000) 38 Osgoode Hall Law Journal 331.
[238] See, eg, J L R Davis, ‘Is There Still Scope for Forum Shopping after John Pfeiffer v Rogerson?’ (2000) 20 Australian Bar Review 107; Anthony Gray, ‘Flexibility in Conflict of Laws Multistate Tort Cases: The Way Forward in Australia’ [2004] UQLawJl 31; (2004) 23 University of Queensland Law Journal 435.
[239] See Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331. For a discussion of this decision, see Elsabe Schoeman, ‘Renvoi: Throwing (and Catching) the Boomerang — Neilson v Overseas Projects Corporation of Victoria Ltd’ [2006] UQLawJl 12; (2006) 25 University of Queensland Law Journal 203; Mary Keyes, ‘Foreign Law in Australian Courts: Neilson v Overseas Projects Corporation of Victoria Ltd’ (2007) 15 Tort Law Journal 9. For a discussion of the decision in the context of broader consideration of the approach to choice of law in cross‑border torts, see Reid Mortensen, ‘Homing Devices in Choice of Tort Law: Australian, British, and Canadian Approaches’ (2006) 55 International and Comparative Law Quarterly 839.
[240] Despite the financial assistance provided by the Eyre Defence Committee, Eyre’s ‘financial straits now were [very] desperate’ by the end of the civil proceedings: Kostal, above n 47, 451, quoting Eyre in a letter to Sir Roderick Murchison, a member of the Committee. In 1872, Parliament finally authorised payment of Eyre’s legal expenses: Dutton, In Search of Edward John Eyre, above n 35, 140–2; Semmel, above n 43, 174–7.