By Shammane Joseph
This article will examine the Ordinances which introduced into the colony of British Guiana, trial by jury in 1844. It will highlight the reasons for the introduction of these ordinances and the effects they had on the judicial process of British Guiana.
Guyana has no indigenous legal system. Nevertheless, we have had the good fortune and the benefit of having the most intriguing legal system in the Caribbean. Our legal system was developed as an amalgam between English and Roman-Dutch laws. When the Dutch colonized Demerara, Essequibo and Berbice, they founded the legal system on the Roman laws as it was being applied in the Netherlands. Even when they changed their legal system to the Code Napoleon after gaining their independence from Spain in 1811, the Roman laws were still applied in Colonial Guyana. Even when the three colonies were taken by the British, and they became ‘colonies of conquest’ the laws remained because of British propensity to substitute English laws for the laws and customs in force at the time of conquest. Moreover, this principle of continuity was later reaffirmed in the Articles of Capitulation of 1803.
According to H.N. Ramkarran, “the British inherited Dutch institutions of governance which were the Court of Policy, the College of Electors, the College of Financial Representatives, and the Combined Court, and were obliged to continue them by Article 1 of the Capitulation Treaty. These continued until 1891 when the Constitution was amended to enlarge the Court of Policy, abolish the College of Electors.” After which only the skeleton remains of the Roman-Dutch laws were found embedded in the English colonies justice system.
The ending of the Dutch legal system did not occur overnight, but this change was facilitated by the essence of Emancipation in Colonial Guyana. With impending freedom of the slaves, in theory it meant that the ex-slaves had to be introduced to equality under the law and benefits of British justice. Thus, the introduction of certain proposals and ordinances implemented during the 19th century served to underscore this ideology. Firstly, the idea of trial by jury proposal was made to the Court of Policy, when the local legal minds asked for law reforms. A commission on the subject consisting of Attorney General Gloster, Norton and barrister-of-law Downie was created, but nothing was realised from their efforts. Later a Report of a Committee on West Indian Affairs suggested that new laws were required in place of those which existed in relation to contracts, of service, tenancy, and vagrancy. As a result, an Order-in-Council April 3, 1843, gave the Governor and the Court of Policy the powers “to make, ordain and establish all such laws, statutes or ordinances … for regulating the constitution of the Courts of Civil and Criminal Justice…. or for regulating the form and manner of proceedings to be observed in those courts or any of them”. In an address to the Court of Policy the Governor proposed to “adopt the whole body of the criminal laws” of England without any mixing with the Roman-Dutch laws. As a result of these prior requests an Ordinance was passed on October 12th, 1844 providing for trial by jury. From 1844-1846 fifteen ordinances were enacted, nine of which introduced the English laws relating to criminal offences and the remainder being concerned with introducing trial by jury in criminal cases. Examples of these were: (1) Ordinance to alter and amend the jurisdiction of the inferior criminal courts of British Guiana (February). (2) Ordinance to extend the jurisdiction of the inferior courts of civil justice of British Guiana (February). (3) Ordinance to repeal ordinance, No. 21, 1844, An Ordinance to consolidate the Supreme Courts of Civil Justice, and to provide an amended manner of proceeding, (April). (4) Ordinance to introduce into the colony of British Guiana the laws of England relative to larceny and other offences connected therewith (June). (5) Ordinance to abolish the office of vendue-master in the county of Berbice, and to extend the provisions of ordinance No. 9, of the year 1844, and of ordinance No. 4, of the year 1845, to the county of Berbice.
Ordinance No. 26 and 27 introduced into British Guiana the practice and procedure in the superior criminal courts trial by jury. Trial by jury was first introduced in civil cases by Ordinance No. 2 1844 for all actions in relation to damages for breach of promise by marriage, criminal conversation with a wife, seduction of any daughter or servant, malicious prosecution, false imprisonment, assault and battery, libel and slander, trespass to person or property not involving title, or negligence; and in all matters not provided for by the Ordinance the procedure was to be “govern by and regulated according to the laws of England”. By Ordinance No. 19 1846, the procedure of trial by jury was extended to all other actions in which the plaintiff sought to recover damages only for wrong or injury of any kind, or the possession of any real property. This procedure was optional especially if neither party applied for it, the trial was to be in the usual accordance with the usual course as provided by the Manner of Proceeding Ordinance No. 21, 1844, this was further amended in 1846 by Ordinance No. 5 where the court can itself see fit to direct any issue to be tried by jury in which case the matter was to be tried notwithstanding the dissent of any party. The ordinance No. 22 1844 further stated that all jury trials must be at bar, that is before a full bench of three judges and twelve jurors however, if it was an ordinary case then the jury trial will be in front of one judge (Clause 1 of Ordinance No. 19 1846).
These ordinances were put in place also:
That the colonial expenditure can be diminished without detriment to the interests of the empire.
That the system of colonial policy and government can be so amended, as to ensure more economical, and altogether better, government for the colonies.
Lastly, that by these reforms the resources of the colonies would be developed, they would become more useful, and their inhabitants more attached to the British Empire.
These ordinances saw to many changes in the judicial system but none evoked more debates and outburst amongst the parliamentarians and whites than Ordinance No. 26. There were many discussions about this law, in terms of its benefits to British Guiana; however, the Honourable Peter Rose did not see this as necessary due to the state of the colony. He was of the opinion that several of the regulations in the government’s ordinance were harsh and injurious to the principles of civilization.
However, the Governor stated that the laws were less stringent than those of England. This sentiment was further supported by parliamentarians in England who regarded the trial by jury as quite necessary for the freedom and civilization of the colony. The real question in this case was, whether the colony was to remain to them a useful auxiliary, or become a source of quietude and danger. Therefore, the principle of the colonial government ought to be to amalgamate all the classes of society in the colony; and what better mode of doing so could be devised, than securing for them that invaluable privilege which brought the rich and poor into an honourable contact by extending to them trial by jury, thus empowering the natives to fill places of trust.
Other colonists were not comfortable with the fact that blacks might be on the jury, in deciding their faith. Many were of the opinion that the blacks lacked the mental capacity to ascertain right from wrong and even more analyse the English laws. The Governor in response stated that the blacks were the very souls who planned and executed some of the most terrifying of revolts, worked the mills, therefore he has no doubt of their capabilities on a jury.
Regardless of the internal uproar the new system worked well. However, there were a few shortcomings, the jurors were not paid for their services nor travelling expenses, more over under ordinance 26 1846, the jury could be locked up for twenty four hours , without meat and drink until they returned a verdict or are discharged. The courts had no proper room for the jury to use for deliberations, so the governor gave a room in his quarters to be used as a temporary jury room. Over the years there emerged complaints, especially in 1919 when Attorney General Nunan said that a new type of juryman was developing, in that jurors were claiming compensation on the ground that the case ended earlier than they had expected, with the result that their services as jurors were used for a shorter time than a case of a much more fortunate panel. Another issue which arose was that under the ordinance no. 23 1893, the identity of jurors had to be forecast and such lobbying was done by the plaintiffs’ friends and families. This was corrected by ordinance no. 25 1918, which introduced a new system of selecting by ballot. The Ordinance in 1893 repealed the need for special juries, African- dominated juries by 1913 were always sympathetic to Indians accused of involvement in labour disturbances. As a result, Attorney Nunan proposed legislation enabling the Governor in Council in special cases to require trial by three judges, instead of trial by jury. This proposal was never pursued by the Secretary of State. However, special juries were restored in law because colonial officials feared that the blacks and coloured men would always side with the East Indian against the whites if the questions of labour or race arose. Special juries were once again abolished in 1961. In the 1846 ordinance women were not allowed on the jury, this was reversed until 1961.
In 1824, Governor D’Urban had put forward the idea of preliminary inquests as a substitute for jury trial. This was facilitated in the Ordinance of 1846, in that if a person is arrested for public aggressions then he would be taken in front of the justice of the peace, who after taking the evidence would decide whether or not to commit the prisoner to trial. Bail and the access to Council were also instituted in this Ordinance. The jury system in British Guiana in the late 1800s almost failed because of difficulties associated with finding the numbers to select grand juries, as well as a desire to simplify procedures.
Mention was made earlier of the propensity of the British to substitute English criminal justice for indigenous or earlier European systems in the colonial territories it acquired. In multi-racial colonies it was not at all guaranteed that the protections of that system would be afforded to non-Europeans, whether as victims of white violence, or as themselves perpetrators of violence against white subjects. The settler or planter mentality was one in which the rule of law was lauded as part of their birth right, but only applicable within the white community.
Moreover, British subjects theoretically were entitled to the protections of the dominant rule of law and that meant they had to be judged by peers in the court of law, but sometimes the judgment that they were “uncivilized” and the forms of legal regulation to which they were subjected to served to deny them equal status with the European populations in Colonial Guyana. The Colonial Office recognized that this process would not be self-executing, and took some steps to try and reduce the influence of the highly partial administration of justice in Colonial Guyana by the planter magistracy by appointing a stipendiary from England. This short lived experiment did little to cure the basic problem of the discriminatory administration of justice in these possessions. While Britain took the moral high road in abolishing slavery, the government subverted that position by both compensating the planters and supporting the continuation of plantation economies in these territories. The result was that the power and authority of these social and economic elites was broadly sustained and their control over the sources of labour continued. The black population remained outside the political mainstream, as did most of the “coloured” or Creole population.
Although some steps were taken to revise the local courts system and to make it more sensitive to the needs of these people, they continued by and large to be on the receiving end of the administration of injustice, whether the criminal law or master and servant legislation. For those former slaves who continued to work on the plantations (many refused to do so, preferring to eke out an independent existence on their small plots of land) although they were to some extent protected from the excessive harshness of the slavery codes, they were still regimented and closely regulated. The same was true of the indentured labourers imported from India and China, with the encouragement of the imperial government, to fill the labour deficit caused by the refusal of the former slaves to work in this environment.
Often subject to overwork, exploitation, neglect and harsh treatment they could expect little or no empathy from the planter magistracy. As Douglas Hay and Paul Craven have noted the fact that the Empire-wide system of master-servant law was administered by magistrates meant that to a great extent it operated outside the surveillance of the superior courts.