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Article Excerpt
[In 1865 Edward John Eyre, the Governor of Jamaica, in the course of suppressing a revolt, caused a leading activist to be tried and executed under martial law Over the next three years, a group of leading politicians and thinkers in England attempted to have Eyre prosecuted for murder. When the criminal process failed, they attempted to have him sued for trespass and false imprisonment. Though this case, Phillips v Eyre, was mainly concerned with constitutional issues, Willes J laid down a rule for choice of law in tort which endured for nearly a century before it was finally superseded. In this article, the author illuminates the case by reference to its background The author speculates on why the decision, which initially occasioned little notice, became the subject of academic and judicial controversy many years afterwards.]
CONTENTS I Introduction II Background: The Prosecution (or Persecution) of Edward John Eyre A Eyre's Early Career in Australia, New Zealand and the West Indies B Eyre as Governor of Jamaica and the Rebellion at Morant Bay C The 'Jamaica Question' D The Criminal Proceedings III The Civil Proceedings: Phillips v Eyre IV Phillips v Eyre and the Conflict of Laws A Choice of Law in Tort Prior to Phillips v Eyre B The Impact of Phillips v Eyre: A New Rule for Choice of Law in Tort? C Controversy over Choice of Law V The Present and the Future
I INTRODUCTION
As a general rule, in order to found a suit in England for a wrong alleged to have been committed abroad, two conditions must be fulfilled. First, the wrong must be of such a character that it would have been actionable if committed in England ... Secondly, the act must not have been justifiable by the law of the place where it was done. (1)
For over a century this classic formula uttered by Willes J in delivering the judgment of the Court of Exchequer Chamber in Phillips v Eyre (2) was the starting point for any inquiry into the rules that govern choice of law in tort. But over time, the difficulties associated with the application of this principle became apparent. One problem was that it compelled the plaintiff to satisfy the requirements of two systems of law. As such, the plaintiff gained no advantage by pleading foreign law; only the defendant stood to gain from such a manoeuvre. (3) Further, the words 'not justifiable' in the second part of the formula caused difficulties for courts which had to decide whether this meant something different from 'actionable' in the first branch of the rule. Early authority suggested that 'not justifiable' simply required that the wrong be civilly actionable in the lex loci delicti. (4) However, the issue was compounded when the English and Wales Court of Appeal, on an interlocutory application in Machado v Fontes, held that if libel was criminally punishable but not civilly actionable in Brazil then it was 'not justifiable' as this expression simply meant 'not innocent'. (5) Though later cases expressed considerable doubt as to the correctness of this decision, (6) it was not until Boys v Chaplin in 1970 that the Court of Appeal disposed of Machado v Fontes and reinstated the civil actionability requirement in the second branch of the rule in Phillips v Eyre. (7)
In Australia and Canada, the possible interpretations of the rule in Phil lips v Eyre produced even more permutations. One theory postulated that either the first (8) or both (9) rules were concerned with jurisdiction rather than choice of law and that, once the jurisdictional issue was satisfied, the court was free to apply the law of the forum as the true choice of law rule. An alternative suggestion was that Willes J's two conditions simply required that the wrong be generally actionable in each of the two jurisdictions, rather than that the action on its facts be successful as between the particular parties. (10) A third possible way of escaping the rigours of the Phillips v Eyre rule was the suggestion that it should be read subject to a 'flexibility exception'. This concept stemmed from the fact that Willes J had prefaced his statement by the words 'as a general rule'. (11) It was not until Boys v Chaplin that English law recognised such an exception, (12) an approach since followed in several Australian cases. (13)
A final theory canvassed in Australia was that the constitutional '[f]ull faith and credit' provisions might apply in cases of interstate torts, (14) thereby requiring the forum court to apply the law of the place of the wrong. (15) In 1988, this was the approach chosen by Wilson and Gaudron JJ when, along with the majority of the High Court of Australia, their Honours decided that the lex loci delicti should be applied in interstate tort cases. (16) In later cases, however, the Court returned to the traditional rule. (17) Other cases simply avoided the rule by classifying the issue as something other than tortious. For example, questions of interspousal tort immunity were regarded as matrimonial, and statutory rights against insurers as sui generis. (18)
In these circumstances, it is not surprising that the leading common law jurisdictions eventually decided to abolish the rule entirely. In the last decade of the 20th century, the High Court of Australia (19) and the Supreme Court of Canada (20) repudiated the rule in favour of reference to the lex loci delicti. Following influential investigations by law reform bodies, the United Kingdom Parliament replaced Phillips v Eyre with a statutory formula. (21) Since then, pressure for harmonisation within the European Union has caused the UK to move even further away from the traditional common law position. (22)
Consequently, Phillips v Eyre is now largely a piece of legal history. (23) But because of the central part it played in the development of the choice of law rule in tort for over a century, the case does not deserve to be forgotten. The basic facts are well-known. Edward John Eyre, then Governor of Jamaica, suppressed a rebellion in Morant Bay in October 1865. His acts were declared lawful by an Act of Indemnity with the consequence that, applying Willes J's formula, trespass and false imprisonment committed during the course of these events could not be termed 'not justifiable'. But behind these bare facts lies one of the leading intellectual controversies of the 19th century, one which occasioned intense debate both at a public level and amongst the leading figures of the day.
For his role in putting down the rebellion, Governor Eyre was at risk of much more than being mulcted in damages. The civil action which has aroused so much interest among conflicts lawyers was a mere appendage to a much wider controversy that gripped England during the late 1860s. The main issue in the so-called 'Jamaica Question' was whether Eyre was a hero who had fulfilled his duty as Governor in suppressing the rebellion (and consequently saving the white population of Jamaica from massacre), or a murderer who had to be prosecuted, punished and perhaps executed for his crimes. (24) Even when the attempt to bring criminal proceedings failed, and the verdict in Phillips v Eyre could have resulted in a damages award at the most, the outcome was still of great importance. A decision for the plaintiff would have suggested that a wrong had been committed in transporting a prisoner into an area subject to martial law where he was cruelly punished.
The fascinating duality in Eyre's character adds to the high profile nature of the issues involved in the case. His early career as an explorer in Australia has made him a leading figure in Australian history, alongside other pioneers such as Thomas Mitchell, Robert O'Hara Burke and John Wills, Ludwig Leichhardt, Charles Sturt, Augustus Gregory and the Forrest brothers (John, Alexander and David). (25) Yet his later actions as a colonial Governor have made him a villain in the eyes of many. (26)
The decision in Phillips v Eyre can be better understood if something is known about the controversial background to the case. Brian Simpson, in his groundbreaking study of the historical background to a number of landmark decisions, (27) commented on the shortcomings of law reports as historical sources and how his curiosity about certain issues involved in cases such as R v Dudley (28) motivated him to want to know more. Simpson said:
There is indeed something at first very peculiar about the tradition, in legal academia, of suppressing curiosity about cases. Both modern and ancient cases are, at least as a general rule, studied without anyone knowing or indeed caring who the litigants were, why they litigated, what they were trying to achieve, what they did achieve, except in so far as this happens to be public knowledge, as it often will be with very modern cases. Much less is it the general practice to relate cases to their general historical context, which is often quite unknown to those who read older decisions. (29)
Simpson suggests that this is due to the fact that most lawyers have adopted a theory about the decision-making process which suggests that most contextual information about cases is irrelevant. (30) Noting that '[y]ou cannot understand litigation simply by reading law reports', Simpson says that
it is no more than common sense to appreciate that it is misguided, if other relevant materials exist, to rely upon law reports alone to tell us what happened in the case, how the dispute arose, what the persons involved conceived the dispute to be about, how it came to be litigated, how it came to be decided the way it was, much less what the consequences of the decision were to the people involved, or to others indirectly affected by the decision. (31)
In the spirit of Simpson's studies, it is suggested that Phillips v Eyre is worthy of the same analysis: the civil action, in which Willes J enunciated the authoritative double choice of law rule, is illuminated by the criminal prosecutions and general surrounding controversy that preceded it. It should be noted that the significance of the civil action is by no means limited to conflict of laws in torts matters: Willes J's ruling was given in the course of discussing the important constitutional issue of the effectiveness of colonial legislation, an aspect of the case directly related to major developments of significance to the entire British Empire. (32) But it is the conflict of laws aspects of the judgment that give rise to questions similar to those that fascinated Simpson. What appears to be a major doctrinal development seems to have happened quietly and without much notice in the law journals of the time (33)--the controversy came later.
Part II of this article provides a summary of and explains the historical setting that gave rise to the proceedings in Phillips v Eyre. An analysis of the decision in Phillips v Eyre follows in Part III, while Part IV discusses the pertinent law prior to and following Willes J's judgment--in particular, it considers when and why the controversy surrounding the double choice of law rule emerged. The fact that Phillips v Eyre has now largely passed into history does not lessen the interest of these questions.
II BACKGROUND: THE PROSECUTION (OR PERSECUTION) OF EDWARD JOHN EYRE (34)
A Eyre's Early Career in Australia, New Zealand and the West Indies (35)
Eyre arrived at Sydney Cove in March 1833, aged 17. His father had suggested to him that Australia might be a preferable option to the army for a young man seeking his way in the world. Eyre gained some experience on a sheep station and began to earn a living trading sheep. It was not long, however, before he developed a desire to explore the unknown regions of what, to Europeans, was a new continent. In 1837 he overlanded stock to the new settlement at Port Phillip, a journey of some 400 miles from Sydney. For his next project, Eyre bought cattle and drove them across to the new colony of South Australia (established the previous year). Despite encountering problems that caused him to retrace his steps in search of a better route, Eyre reached Adelaide in July 1838--the first European to make the journey from Sydney by the overland route.
Following further exploration of the unknown country to the north and west of Adelaide, and a sea voyage to Albany on the southern tip of Western Australia, Eyre conceived an even grander project: the opening up of an overland stock route between Adelaide and Perth, through 2000 miles of unknown territory. Having gained the support of the Governor of South Australia, George Gawler, (and having invested a good deal of his own money in the project) Eyre's expedition left Adelaide in July 1840. Finding the route to the north barred by great salt lakes (one of which is now named Lake Eyre), Eyre was forced to travel west in an attempt to find the head of the Great Australian Bight. The expeditioners endured many privations, often unable to find water for several days at a stretch. Eyre survived the desertion of some of his Aboriginal trackers, who shot his assistant Baxter and plundered the guns and stores, and later on, when in desperate straits, was fortunate to encounter a French whaling ship. With his Aboriginal companion, Wylie, Eyre reached Albany one year and 26 days after leaving Adelaide. (36)
Eyre then began to make the transition from pioneering explorer to colonial servant. (37) Ironically, in view of later events, it was Sir George Grey, the new Governor of South Australia, who gave him his first position as Resident Magistrate and Protector of the Aborigines on the Murray River. Eyre occupied this post from 1841 to 1844, by which point relations with Grey had cooled. After more than a year in England waiting for a summons from the Colonial Secretary, Eyre accepted the post of Lieutenant-Governor of southern New Zealand, arriving in Wellington in July 1847. However, the new Governor of New Zealand--Eyre's immediate superior--was none other than Sir George Grey. Grey was an able administrator who believed in running a tight budget, but who did not show much regard for representative democracy. His increasing dislike of Eyre was manifested in his conduct towards him over the next seven years. (38) Everything Eyre did earned a reprimand from the Governor and, in the end, he was not even permitted to travel outside Wellington without the Governor's consent. Matters were made worse when Adelaide Fanny Ormond, Eyre's fiancee, came to New Zealand to marry him in 1850: Lady Grey, the Governor's wife, nearly succeeded in persuading Ada to abandon thoughts of matrimony and return to England. When he opposed Grey's constitutional Bill, (39) Eyre was effectively removed from his post. However, Eyre had to remain in New Zealand under the Governor's control for another two years before finally being released. Even then, Grey saw to it that the Eyres, with Ada in the late stages of pregnancy, missed their ship to England.
In spite of these experiences, Eyre continued to seek government positions, serving five years (1854-59) as Lieutenant-Governor of St Vincent followed by a year (1859-60) in Antigua as temporary Governor-in-Chief of the Leeward Islands. Then, in January 1862, Eyre became the temporary Lieutenant-Governor of Jamaica.
There is a telling contrast between Eyre the explorer--master of his own destiny--and Eyre the public servant who was constrained by authority. In the words of Geoffrey Dutton, '[t]he tragedy of Eyre was that his heroic qualities were of a solitary, not a public kind.' (40) As a young man in Australia, Eyre was independent and made his mark as an explorer relying on his own initiative. On various expeditions, Eyre was prepared to make difficult decisions when faced with a crisis, perhaps because his obstinacy made him committed to achieving the goals that he had set himself. (41) Later in life, during the 20 year period he served as a colonial Governor, Eyre had to accept the restraints of authority, something which did not always come easily. Whether this affected his decision-making ability during the crucial stages of the Morant Bay rebellion is a matter for debate. It may simply be that advancing age and the burdens of responsibility rendered the decision-making process rather more complex; or, as Dutton suggests, it is possible that the 'traumatic' experiences that he suffered at the hands of 'that sadistic pair', Sir George and Lady Grey, had an ongoing effect on him. (42) So long after the events in question, one can merely speculate. (43)
Eyre had a much greater understanding of the Aboriginal peoples than most early European colonists. He took the time to try to learn their languages and understand their culture. On his early expedition from Sydney to Adelaide, Eyre chose not to give his men guns to protect themselves from the Aborigines, as he believed that understanding was greatly preferable to conflict. He also took care of Aboriginal companions such as Wylie who stood by him, and he paid for two boys to return to England with him to be educated. Later, as Protector of the Aborigines on the Murray River, he restored good relations with the native peoples. The same characteristics are manifested by Eyre's attempts to understand the New Zealand Maoris, whose language he attempted to learn whilst travelling to Wellington. His experience with the Australian Aborigines bore fruit in his work Manners and Customs of the Aborigines of Australia, written in 1845. (44) As Dutton says:
It is ... clear from the whole history of his relations with the Aborigines, that his bravery and presence of mind did not just extend to the field of his explorations. In all his dealings with the Aborigines he consistently displays a courage which would have been quite alien to the caricature, drawn twenty years later by the Jamaica Committee, of a man frightened by an alien race. (45)
However, there is some evidence that Eyre felt less sure of himself in the West Indies where Europeans were greatly outnumbered by the black and coloured population, who had by then experienced 200 years of contact with Europeans. During Eyre's time in St Vincent, there were a number of riots and his dispatches suggest that he was feeling nervous. He may have been a little too ready to ask for troops to assist in quelling such disturbances: in 1857, his request for the assistance of the military was rejected by his superior, Governor Francis Hincks. (46) All of this may suggest a change in Eyre's character as he grew older and became weighed down by the burdens of public office. However, there was nothing to suggest that when Eyre went to Jamaica he would become the callous murderer that he was portrayed to be by many sectors of English society as a result of the October 1865 uprising at Morant Bay.
B Eyre as Governor of Jamaica and the Rebellion at Morant Bay (47)
The key event that made Eyre the subject of controversy in England over the ensuing years--and that provided the immediate backdrop to the litigation in Phillips v Eyre--was the arrest, trial by court martial and execution in October 1865 of George William Gordon. Gordon was the illegitimate son of a white landowner and a black slave. Freed by his father, he had risen to a position of affluence and social respectability. He was a magistrate, subsequently a member of the House of Assembly and also a lay preacher in the Native Baptist Church. Gordon was a constant thorn in the side of the authorities through his agitation for social reforms. Even before Eyre's arrival, he had incurred the displeasure of Governor Ralph Darling because of his complaints about the state of the prison at Morant Bay, a settlement in the Parish of St Thomas in eastern Jamaica. Clashes between Eyre and Gordon began soon after Eyre's arrival in Jamaica in early 1862.
Jamaica faced many problems during this period. Unlike Trinidad and British Guiana (now Guyana), which were Crown colonies, in 1662 King Charles II of England had given Jamaica a form of self-government similar to that conferred on the original 13 American colonies in the same period. (48) However, the House of Assembly, elected by the European planter class who alone had the right to vote, (49) was corrupt and resisted reforms, and threats of a repeat of the insurrection of 1831 were never far away. (50) The abolition of slavery in 1833 had led to a labour shortage, as the black and coloured population chose to cultivate their own smallholdings rather than work for others. The planter class, who supported the established church, were uneasy about the Native Baptist 'sect' whose faith was a mixture of Christianity and pagan practices such as obeahism.
The initial clash between Eyre and Gordon resulted from an open letter from Gordon about conditions in Morant Bay in June 1862. After taking the advice of Baron Maximilian yon Ketelholdt, the Custos of the Parish of St Thomas, (51) Eyre dismissed Gordon from the magistracy. Von Ketelholdt and Gordon were already enemies. (52) Controversy continued over the next three years, (53) during which time Eyre made some unfortunate decisions. In early 1865, for example, Edward Cardwell, the Secretary of State for the Colonies in England, sent Eyre a letter from Dr Edward Underhill, the Secretary of the Baptist Society, about social conditions in Jamaica. Eyre distributed copies seeking evidence of the truth or otherwise of Underhill's assertions, which simply stirred up further controversy. As a result of an 'Underhill Meeting' in the Parish of St Ann's, (54) the locals sent a petition to the Queen asking for more land, which in July 1865 elicited the unhelpful response from Cardwell that if the people worked harder they would become more prosperous. Eyre again distributed copies of this throughout the island. Gordon denounced Cardwell's response and maintained a constant attack on Eyre. Reports of secret drillings and rumours of the possibility of an insurrection began to emerge.
The touchpaper was lit when there was a disturbance at Morant Bay on 7 October 1865. Two hundred men led by Paul Bogle, a black preacher, marched on the courthouse and a riot ensued. Warrants were issued for the arrest of Bogle and 28 others, but the half-dozen police sent to execute the warrant were hopelessly outnumbered. In response to reports that Bogle's men...
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