Post Capitulation Trinidad (1797–1947): Aspects of the Laws, the Judicial System, and the Government

Copyright © 2019 by Ivol Blackman.

Library of Congress Control Number:   2018913666

ISBN:                  Hardcover                       978-1-9845-6605-8

                            Softcover                          978-1-9845-6604-1

                            eBook                               978-1-9845-6603-4

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Rev. date: 04/04/2019

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CONTENTS

Chapter I               The Promise To Preserve Spanish Law And The Ancient Legal Institutions

Chapter II             Governor Hislop, Chief Judge Smith, And Constitutional Change

Chapter III            Change In The Law And The Courts

Chapter IV            The Courts Before And In 1822

Chapter V             Land Tenure Regularisation—The Problems And The Legal Solutions Attempted

Chapter VI            The Paramountcy Of Plantation

Chapter VII          The Apprenticeship Of The Slaves And The Law – A Price For Freedom

Chapter VIII         Indian Indentureship And The Law

Chapter IX            The Free Coloureds—The Revocation Of The Objectionable Laws

Chapter X             Continued Demand For Change In Spanish Law

Chapter XI            Family Law And The Paramountcy Of Plantation

Chapter XII           Property Law

Chapter XIII         Business Law

Chapter XIV         Trial By Jury—Early Law

Chapter XV           The Writ Of Habeas Corpus

Chapter XVI         Criminal Law After 1832

Chapter XVII        The Courts

Chapter XVIII      The Petty Civil Courts

Chapter XIX         Jury Trial—The Law In 1848 And After

Chapter XX           The Coroner’s Court

Chapter XXI         Property Law—Trusts And Trustees

Chapter XXII        Criminal Law 1884

Chapter XXIII      The Law Of Evidence—Legislation By Reference

Chapter XXIV      Courts Of Appeal

Chapter XXV        The Legislative Council, 1924

Chapter XXVI      Adult Suffrage, 1945

Appendix 1

Appendix 2

Appendix 3

Appendix 4

Appendix 5

Appendix 6

Appendix 7

Appendix 8

Appendix 9

Appendix 10

Appendix 11

Appendix 12

Appendix 13

Appendix 14

Appendix 15

Appendix 16

Appendix 17

Appendix 18

Notes

Glossary

Bibliography

CHAPTER I

THE PROMISE TO PRESERVE SPANISH LAW AND THE ANCIENT LEGAL INSTITUTIONS

Trinidad was acquired by Spain on 31 July 1498, when Christopher Columbus arrived on the island. It was his third voyage to what was then known as the New World.

It is said that he landed on the southern coast of the island, and after seeing three mountain peaks, he named it La Trinidad, after the Holy Trinity. The island remained under Spanish rule until 1797, when it was captured by British forces under the command of Sir Ralph Abercromby. The Spanish Governor at the time was Don José María Chacón. He surrendered without offering any or much resistance.

In Trinidad, as in other parts of the Spanish Colonial Empire, there was established by the metropolitan country, a legal and administrative system that did not come to an abrupt end on the signing of the Articles of Capitulation, the document evidencing the surrender of the island to the British. Spanish law and Spanish legal institutions existing in Trinidad at the time of the signing of the Articles were supposed to remain in force, as by a circular dated 22 February 1797, four days after the capture of the island, Sir Ralph Abercromby directed that the administration of civil and criminal justice and of the police or Cabildo should continue as under Spanish law. (See appendix 1.) As subsequent events would show, the promise was never kept.

The circular of 22 February was sent to all Commandants of Quarters in the island. Quarters were divisions into which the island was then divided. The instructions required that the Commandants give notice to all the inhabitants in their respective Quarters that they should take the oath of allegiance to His Britannic Majesty and also required the Commandants to collect all arms in their Quarters.

But more significantly, the Commandants of Quarters were informed that they should make it publicly known that the Administration of Civil and Criminal Justice and of the Police or Cabildo is to continue as heretofore under the Spanish Laws. The Commandants of Quarters were an institution established by Chacón, the Spanish Governor. They exercised judicial and police powers in their Quarters, or districts, of which there were twenty-eight in the Island.

The directions to the Commandants of Quarters were also to the effect that in civil cases, there was to be a right of appeal from the local court to the King and Council in England in matters involving sums amounting to £500 or more. Therefore, from the very start the right of appeal to the King’s Privy Council, which later became the Judicial Committee of the Privy Council, was available to the people of Trinidad. The positions of all officers involved in the administration of the civil and criminal law were to be maintained on the same terms and conditions as existed before the capitulation, on condition that such officers subscribed to the oath of allegiance to the British Government.

There were later interventions emphasising that Spanish law should be applied in administering justice in the newly acquired territory. For instance, in June 1800, two separate instructions were transmitted to Picton, the British Governor of the colony at the time. The first dictated that the administration should be exercised by you as far as conditions permit, according to the terms of the Capitulation and in conformity to the ancient Laws and Institutions that subsisted within the said Island previous to the surrender. The second remit from the home government was to the effect that it is our will and pleasure that, for the present and until our further pleasure shall be signified, the same courts of jurisdiction which subsisted in the said island, previous to the surrender thereof to us, shall, for the present, be continued in the exercise of all the judicial powers belonging to them in criminal and civil cases; and that they shall proceed according to the laws by which the island was then governed and that such judicial powers, as previous to the surrender of the said island to us, as were exercised by the Spanish Governor, shall be exercised by you, our Governor, in like manner as the same were exercised previous to the surrender of the said island. (See appendix 2.) Those more recent documents served to reinforce the directions that were given to the Commandants of Quarters by Abercromby. What is significant about both documents is that they not only emphasised the maintenance of the Spanish laws and institutions subsisting at the capitulation but also adherence to the Articles of Capitulation for the surrender of the island.

Interestingly, the instructions of 22 February 1797 given by Abercromby were directed not to Governor Picton, the first British Governor, but to the different Commandants of Quarters and districts.¹ They were also dissimilar to those addressed to John Nihell, the Irishman whom he had appointed Chief Justice, and also to those given to Governor Picton when he assumed the position as military Governor of the island. A later proclamation signed by Governor Hislop dated 7 April 1807 reiterated the preservation and enforcement of Spanish laws in Trinidad. That proclamation was to the effect, inter alia, that the Laws of Spain, as they are applicable to the Spanish West Indies Colonies, and such Laws, Ordinances and Regulations as were in force in this Island previous to the conquest — shall be strictly followed in the Administration of Civil and Criminal Jurisprudence therein. (See appendix 3.)

THE ANCIENT LEGAL INSTITUTIONS

The most important political and judicial agents in the Spanish Colonial Empire were the viceroys, the captains general, and the royal audiencias. They all had limited powers of legislation. But in practice, there was never a clear-cut demarcation of functions of those authorities. The viceroyalties were not really courts of law as such, but the viceroys did, in an indirect way, perform judicial functions in their interpretation of the laws transmitted to the colonies by the Council of the Indies when the occasions arose for them to interpret them. In other words, they would alter the meaning of laws to meet particular situations and needs. In the words of Charles Gibson², the difference between enacted legislation at a distance and interpreted legislation on the scene was manifested again and again. In other words, the maxim Obedezco pero no cumplo (I obey but I do not fulfil) was commonly applied by those officials.

The Cabildo was primarily a local unit of political government in Spanish America. It was a municipal corporation. That municipal authority was vested in the hands of (a) Regidores or councillors and (b) Alcaldes Ordinarios or Magistrates. Those Alcaldes were chosen from among the Regidores and were classified as (1) Alcaldes of the first election and (2) Alcaldes of the second election respectively. The word Cabildo signifies a Congress or Assembly, composed of Alcaldes (Chief Magistrates), Regidores (Aldermen), and others charged with the administration and internal government of a town.³

In Trinidad the most important judicial functions of the Cabildo were performed by the Alcaldes Ordinarios exclusively. But although the Cabildo was principally a local government authority, it did, on occasions, exercise a judicial function when it heard appeals in civil matters involving sums of money not exceeding 70,000 maravedis. In that sense, it performed the functions of a court. The Cabildo was, however, the source of the Magistrates named Alcaldes. The Alcaldes of the first and second elections presided in courts of equal jurisdiction in both civil and criminal cases. So that the significance of the Cabildo in terms of the legal history of Trinidad is that some of its members, the Alcaldes in Ordinary, were the early Judges (Magistrates) of Trinidad. The English Governors presided at meetings of the Cabildo.

The Cabildo in Trinidad was originally sited in St. Joseph, a few miles outside of Port of Spain. However, at the time of the conquest, that institution was located in Port of Spain. The name and constitution of the Cabildo effectively came to an end in June of 1840, when it was replaced by another body that was called the Town Council of Port of Spain. The Ordinance of 1840, considered by some to have terminated the Cabildo, intended no more than a change in the name of the municipality and a change in the title of its members. Its functions were not really disturbed.

This conclusion is evident from the wording of the commencement of the relevant part of the enactment which reads as follows:

AND WHEREAS it is expedient that the said Corporation or Municipal Body should be continued, but that the name of the said Corporation or Municipal Body, and of its Officers, should be changed, and the constitution of the said Corporation or Municipal Body, and the mode of electing or appointing the Members thereof should be settled, and that the powers and authorities of the said Corporation, for the future, should be ascertained and declared, and the mode of disposing of the revenues thereof regulated and defined: NOW, THEREFORE, Be it Enacted, and it is hereby enacted, &&& That from and after the Promulgation of this Ordinance, the Corporation or Municipal Body now existing in the Town of Port of Spain, and called or known by the name of The Illustrious Cabildo of the Town of Port of Spain, or by whatever name or title the same is known, shall be continued under the name and title of the Town Council of the Town of Port of Spain, and under that name and title shall be and continue a Corporate Body, and have perpetual succession &&&.

As a result of the reconstitution of the Cabildo, more appropriately known as the Illustrious Cabildo, the designation of its members was altered. In the words of the Ordinance terminating the Illustrious Cabildo, the titles and Offices of Corregidor, Alcaldes in Ordinary, Perpetual Regidors, Regidors, Alcaldes de Barrios, Alcaldes de Marina, and Syndic Procurador — shall cease and determine. Henceforth, the members of the body replacing the Cabildo were known as town councillors.

THE AUDIENCIA

Apart from the judicial officers who were chosen from among the members of the Cabildo and who were called Alcaldes, the Spanish Governor constituted another court, the Royal Court of Audiencia, in which he was advised by an Asesor, an officer who was conversant with the law. Cases brought against planters were usually tried in the Governor’s court. The Royal Audiencia was not only a court of first instance but also a court of appeal. In addition, the Spanish Governor, as Intendant, constituted the court of Intendant, which tried cases of crimes against the Spanish crown. In 1777 Venezuela came under its own Captaincy General. In that year, Trinidad was added to its jurisdiction, and when in 1786 the Captaincy General of Venezuela was provided with its own Audiencia based in Caracas, that body became one of the courts that adjudicated on cases from Trinidad.⁴

Before the capitulation, there were many other Spanish institutions in the colonies that dispensed justice, but they were more akin to quasi-judicial bodies than to courts of law in the strict sense. Such were the Residencia, the Visita, and the Pesquisdores or Jueces de Comision.

The Residencia was created for the purpose of controlling the activities of officeholders. By that device, officeholders were made to account for their performance and conduct during their term of office. It was an investigative body, at the head of which was a judge or sometimes the successor of the outgoing officer. The hearings were held in public, and persons who suffered unjustly at the hands of the officer could appear before the Residencia and give evidence. If the officer was culpable, he could be punished. Punishment might take the form of restitution.

The Visita performed a similar function to the Residencia, but unlike the Residencia, the Visita was held in private; the Residencia was in public. The Visita could be general or specific. In the latter case, the enquiry was restricted to the conduct of affairs of a particular officer; in the case of the former, the enquiry took the form of an investigation into the entire viceroyalty. The investigation was conducted by an officer called a visitador. He was appointed by the Council of the Indies in consultation with the sovereign or, in some cases, by the viceroy. The Pesquisidores or Jueces de Comision was also an investigative body, but its scope was limited to minor officials.

The imperfections and deficiencies in the system of the quasi-judicial bodies—which were meant to encourage honest, fair, and transparent governance—became evident in the course of time. C. H. Haring, in his classic work, alluded to those weaknesses when he wrote:

One of the most apparent results of the system in America was to discourage healthy initiative on the part of viceroys and governors, and prevent important political and economic developments in the colonies.

The residencia was also frequently an unsatisfactory device because of the notorious unreliability of many of the witnesses on both sides. As Ernesto Schafer has remarked, if they were enemies of the official under examination he was represented as the greatest criminal and malefactor in the world, while his friends lauded him to the skies as the ideal of a good and faithful servant of the crown.⁵

After the conquest, these quasi-judicial authorities were never evident and appeared to have gone into obsolescence; or they just did not survive after Britain took control of the island.

All the judicial bodies at the time of Spanish rule, and for some time after, were guided by the body of laws known as the Recopilacion De leyes De los Reynos De Las Indias that was introduced in 1681 as modified from time to time after the capitulation. It was considered to be a comprehensive codification of the Spanish laws applicable to the Spanish overseas territories. That legal system would therefore have been in place and would have been employed in the governance of Trinidad by the Spanish rulers prior to 18 February 1797.

THE ARTICLES OF CAPITULATION—THE BILL OF RIGHTS

The document evidencing the surrender of Trinidad to the British military force under the command of Sir Ralph Abercromby contained fifteen paragraphs called Articles.

The Articles are very significant. They demonstrate the weight and emphasis that were placed by the conquerors and the conquered on property rights, liberty, and the freedom of religion. They were the Bill of Rights of all free men in Trinidad at the Capitulation. The principle of liberty in the,Articles did not, however, include a numerically important section of the inhabitants of the captured territory. The slaves in Trinidad, as in all other countries in the New World where slavery was introduced, were considered to be property—mere chattels—and their humanity was denied. The principle of liberty did not, therefore, apply to them. In the words of one writer, they were mere implements of work.

That consideration for the protection of person and property and the freedom to worship loomed large in the minds of those responsible for the drafting of the Articles of Capitulation can be gathered from the paragraphs cited hereunder:

Article 8. All the private property of the inhabitants, as well Spaniards as any such as have been naturalised, is preserved to them.

Article. 9. All public records are to be preserved in such courts or offices as they are now in; and all contracts and purchases between individuals, which have been done according to the laws of Spain, are to be held binding and valid by the British Government.

Article 10 .The Spanish officers of administration who are possessed of landed property in Trinidad, are allowed to remain in the island, they taking the oaths of allegiance to His Britannic Majestic; and they are further allowed, should they please, to sell or dispose of their property, and to retire elsewhere.

Article 11. The free exercise of their religion is allowed to the inhabitants.

Article 12. The free coloured people, who have been acknowledged as such by the laws of Spain, shall be protected in their liberty, persons and property, like other inhabitants. (See appendix 4.)

It may also be argued, justifiably, that the real reason behind the Articles of Capitulation was the maintenance of peace and order in a conquered land comprising of diverse groups of people each having its own interests, viz., the free coloureds, the English, the French, the Spanish, and the indigenous inhabitants. All these disparate groups, not those in slavery, who comprised a significant part of the population, were given the assurance that they would be protected in their person and property. The prevailing conditions in the French territories in the Caribbean, particularly in Haiti, at the time led to distrust of the French element in Trinidad by the British conquerors because the people of French origin might have been thought to have Republican leanings and, therefore, disruptive tendencies. The feeling of unease and distrust by the conquerors would continue for a considerable time after the Capitulation document was executed. It was in those circumstances that Picton, the first British Governor, was appointed.

The cession of the island was confirmed in 1802 by the Treaty of Amiens. The document contained twenty-two articles but only two, the third and the fifth one, pertained to Trinidad.⁵a It is significant that, unlike the Articles of Capitulation, no similar guarantees of rights were mentioned in it, but the Articles remained in force.

GOVERNOR PICTON AND THE LAW

Governor Picton’s rule in Trinidad may be divided into two periods—1797 to 1801 and 1801 to 1802. During the first period, he was in complete control of the conquered colony after Abercromby had appointed him as military Governor. In his instructions to Picton, Abercromby exhorted him, inter alia, to execute Spanish law as well as you can, do justice according to your conscience, and that is all that can be expected from you.

Those directions to the Military Governor of a newly conquered colony were understandable; but as it turned out, they were a recipe for uncontrolled tyranny and the dispensing with the rule of law. Abercromby’s advice to Picton was not consistent with the undertakings given in the Articles in the administration of the territory. Picton was to be guided not by the laws and institutions that existed at the time of the conquest of Trinidad but by his conscience. Picton’s conscience proved not to be one of a delicate nature.

Picton, as was the case with the early British Governors, possessed all civil and military power. He had his own court, and as a judge, he exercised an original jurisdiction in both civil and criminal cases. He had inherited this position from his Spanish predecessor. The British Governor also acted as a court of appeal, supplanting the Audiencia which, at the conquest, was based in Caracas.

In criminal cases on appeal to the Governor, there was no right of appeal. However, in civil cases involving £500 or more, there was a right of appeal to the King in Council. Thus was emphasised the importance of property rights as opposed to human rights in the colony. The Audiencia based in Caracas during Spanish rule acted as a court of appeal for Trinidad, but unlike the Audiencia that was presided over by the British Governors, the Audiencia in Caracas was never a final court of appeal as appellants convicted of crimes involving life or limb could resort to the King in Council in Spain.

During the Spanish occupation of Trinidad, the Royal Audiencias were the most important judicial agents of the Council of the Indies in America. They were the highest royal courts of appeal within their areas. They also performed political and administrative functions. The viceroy or captain general presided ex officio over the Audiencias in their own capitals; the other Audiencias were headed by presidents, who were usually the Spanish Governors. The Spanish judges in civil matters in the Audiencias were called oidores; those in criminal cases were alcaldes del crimen.

Although the Royal Audiencias were courts of appeal, they also possessed an original jurisdiction in criminal cases occurring within the city where they were and also within five leagues of them. They were also courts of first instance in matters involving the interest of the Crown and cases touching on ecclesiastical disputes. Cases heard in the Audiencias sitting in their original jurisdiction were appealable to the Council of the Indies. But in appeals in criminal cases from the inferior courts to the Audiencias, their decisions on the appeal were final except in cases involving life or limb. However, in civil cases involving 10,000 pesos, appeals were allowable from the decisions of the Audiencias. The early British Governors, Governor Picton included, inherited much the same powers as were exercised by their Spanish counterparts sitting in the Audiencia.

Picton’s administration of Trinidad between the period 1797 and 1801 was characterised by excessive brutality and unjustifiable racial discrimination as well as distrust. He had fallen prey to the politics of a white faction comprising the French and English immigrants in Trinidad. As a result of his connection with that group, Picton came to distrust the free people of colour within the society, sometimes meting out to them the harshest of punishment based on confessions extracted from them by way of torture. A notorious case was that of a young coloured girl under the age of fourteen by the name of Luisa Calderon. She is said to have been impaled several times on stakes in order to get a confession from her.

Advised and encouraged by Christoval de Robles and St. Hilaire Begorrat, the latter of whom originally came from Martinique, Picton believed that striking fear into those he thought might be revolutionaries was the best way to administer the country at that time. He was, as was directed, administering justice, as he might have thought, in consonance with his own conscience.

For his torture of Luisa Calderon, Picton was indicted on several counts in England under the English Criminal Jurisdiction Act 1802 but was eventually acquitted on all of them. The Act 1802 was considered necessary in order to bring to justice persons holding and exercising publick employments out of Great Britain who often escape punishment for offences committed by them for want of courts having a sufficient jurisdiction in or by reason of their departing from the country or place where such offences have been committed.

The King v. Thomas Picton, Esquire, for misdemeanour, comprised seven counts, all of which were substantially one of torture of Luisa Calderon on several occasions. The indictment demonstrates the ingenuity of English jurisprudence. The offences were all committed in Port of Spain, Trinidad. However, Picton occupied an office in the colony, which exempted him from being tried in Trinidad for any crimes perpetrated there. He could only be indicted and tried in England. Therefore, by a mythical device, Trinidad, the locus of the crimes committed by the Governor, became a place at Westminster in the County of Middlesex. The first count of the indictment as far is relevant illustrates the point:

The said Thomas Picton on the nineteenth day of December in the forty-second year of our reign and long before was a person employed in our service in a civil and military station out of Great Britain to wit in the Island of Trinidad.

And that the said Thomas being so employed as aforesaid but unlawfully wickedly and maliciously intending to aggrieve and oppress one Luisa Calderon of Port of Spain aforesaid in the said island of Trinidad and