History of the Court System of Sri Lanka
Royal Charter of Justice of 1801 of King George the 3rd establishing the Supreme Courts of the Island of Sri Lanka
GEORGE the third, by the Grace of God, of the United Kingdom of Great Britain and Ireland King, Defender of the Faith: to all to whom these resents shall come, greeting:
Whereas, by Our Commission under Our Great Seal of Great Britain, bearing Date at Westminster, the Nineteenth Day of April, in the Thirty-eighth Year of Our Reign, and in the Year of Our lord one thousand seven hundred and ninety-eight; reciting. That the Dutch settlements in the island of Ceylon, in the Indian seas, and such parts of the said island as were formerly under the Dominion of the States General of the United Provinces, were then in Our Possession, and that we were desirous of providing for the necessary Government of he said settlements, Territories, and dependencies, in manner herein expressed, during Our Pleasure, and until we should think fit to make further or other Provision touching the same, we were pleased to constitute and appoint, and we did thereby constitute and appoint, our trusty and well beloved Frederick North Esquire, to be our governor and Commander-In-Chief in and over the said Settlements in the island of Ceylon in the Indian seas, with the Territories and dependencies thereof, and all forts and Garrisons established within the same, during our pleasure, and did thereby empower him to do and execute the several things therein expressed, and any other thing or things which to our governor and Commander-in-Chief did of right, or ought to belong, according to the provisions which by such Commission, or otherwise, we had made, or should make, for the temporary governments of the said settlements, with their territories and dependencies, during our pleasure:
i. And whereas, by Our Instructions to he said Frederick North, We declared it to be Our Will and Pleasure that for the present, and during Our Will and Pleasure, the temporary Administration of Justice and Police in the said Settlements, and in the territories and Dependencies thereof, should, as nearly as Circumstances would permit, be exercise by Our said Governor in Conformity to the Laws and Institutions that subsisted under the antient Government of the United Provinces, subject to such Deviations in consequence of sudden and unforeseen Emergencies or to such Expedients and Useful Alterations, as might render a Departure there from, either absolutely necessary and unavoidable, or evidently beneficial and desirable:
ii. And whereas, by a proclamation, bearing Date at Colombo, in the Island of Ceylon, on the Twenty-third Day of September in the Year of Our Lord One thousand Seven Hundred and Ninety-nine, and issued and promulged in the Name, and by Authority of Our said Governor, in pursuance of the said Instructions, certain Regulations for the due Administrations of Justice Civil and Criminal, throughout the Settlements in the said Island pf Ceylon, and the Territories and Dependencies thereof, were ordained and promulged:
iii. And whereas, by Our Commission under Our Great Seal of Our United Kingdom of Great Britain and Ireland, bearing Date the Eighteenth Day of April, in the Forty-first Year of Our Reign, and in the Year of Our Lord One thousand eight hundred and one, We have thought fit to repeal the said Commission to the said Frederick North, and again o constitute and appoint the said Frederick North to be Our Governor and Commander-in-Chief in and over the said Settlements in the Island of Ceylon, with he Territories and Dependencies thereof, and all Forts and Garrisons within the same, during Our Pleasure, and did thereby empower him to do and execute the several Things therein expressed, and any other Thing or Things which to Our Governor and Commander-in-Chief did of We had made , or should make, for the temporary Government of he said Settlements, Territories, and Dependencies during Our Pleasure: and We did also due other Instructions to the said Frederick North, and Dependencies and Administrations of Justice therein:
iv. And whereas it is necessary further to provide for the due Administration of Justice in such Manner as the State and Condition of the said Settlements, with the Territories and Dependencies thereof, and o the Inhabitants thereof, for the present, (during Our Pleasure, and subject to such Alterations and Provisions as We may hereafter things fit to make), or as Circumstances may require.
v. Now know ye, That We, upon full Consideration of the Premises, and of Our especial Grace, certain Knowledge, and mere Motion, have thought fit to grant, direct, ordain, and appoint that there shall be, within the said Settlements of the Island of Ceylon, and the Territories and Dependencies aforesaid, during Our Pleasure, and until such Time as We shall think fit otherwise to provide for the Administration of Justice therein, a Court of Record, which shall be called The Supreme Court of Judicature in the Island of Ceylon; and We do hereby create direct, and constitute the said Supreme Court of Judicature in the Island of Ceylon to be, during the continuance thereof as aforesaid, a Court of Record.
vi. And We do further will, ordain, and appoint, That the said Supreme Court of Judicature in the Island of Ceylon, shall consist of, and be holden by and before, One principal Judge who shall be, and be called The Chief Justice of the Supreme Court of Judicature in the Island of Ceylon; and One other Judge, who shall be and be called The Puisne Justice of the Supreme Court of Judicature in the Island of Ceylon; which said Chief Justice and Puisne Justice shall be Barristers, in England or Ireland, of not less than Five Years standing, to be named and appointed, from Time to Time, by Us, Our Heirs and Successors, by Letters Patent; under Our and Their Great Seal of the United Kingdom of Great Britain and Ireland, and they shall each and every of them hold their said Offices, severally and respectively, during the Pleasure of Us, Our Heirs and Successors, and not otherwise.
vii. And it is Our further Will and Pleasure, That the said Chief Justice, and the said Puisne Justice, shall, severally and respectively, be, and they are, and each of them is hereby appointed to be, Justices and Conservators of the Peace, within and throughout the whole Extent of the said Settlements and Territories in the said Island of Ceylon, with their Dependencies.
viii. And We further will and ordain, That all Sentences, Judgments, Decrees, Rules, Orders, and Acts of Authority, to be made or done by the said Supreme Court of Judicature, shall be made and done by and with the Concurrence of the said Chief Justice, and Puisne Justice, if they both be assembled and sitting, or if One only shall be sitting, then by such Chief Justice or Puisne Justice, as the case may be.
ix.Provided always, That in case the said Chief Justice and Puisne Justice shall happen to differ in Opinion in any Civil cause or Matter, the same shall be adjourned for Seven Days at the least, and in case, after such Adjournment, the said Justices shall continue to differ in Opinion, the Question shall be decided by the Opinion of the Chief Justice, and such Difference of Opinion shall be suggested on the Records of the Court.
x. And provided, That in all criminal Cases and Prosecutions, if the said Chief Justice and Puisne Justice shall happen to differ in Opinion, the said Chief Justice and Puisne Justice shall draw up a State of the Case in which such Difference shall have arisen, and the Evidence thereon, and state the Nature and Grounds of such Difference of Opinion in Writing, and shall both sign the same, and lay such Case before the Governor, or, in his absence from the said Island of Ceylon, the – Lieutenant Governor of the said Settlements, in the said Island for the Time being who shall thereupon take the same into Consideration, and cause the said Statement to be returned to the Chief Justice, with the Determination of such Governor, or Lieutenant Governor as aforesaid, thereon written, and signed by such Governor or Lieutenant Governor, which Rescript and Determination shall be in every such Case be final and conclusive.
xii. And We do further grant, ordain and appoint, That the said Supreme Court of Judicature in the Island of Ceylon, shall have and use, as Occasion may require, a Seal, bearing a Device and Impression of Our Royal Arms, with an Exergue, or Label, surrounding the same with this Inscription, The Seal of the Supreme Court in Ceylon: And We do hereby grant, ordain, and appoint, That the said Seal shall be delivered to, and kept in the Custody of the said Chief Justice, and in case of Vacancy of the Office of Chief Justice, the same shall be delivered over to the said Puisne Justice during such Vacancy: And We do hereby grant, ordain, and appoint, That if it shall happen that the said Seal shall by any Means come to the Hands of any Person or Persons other than the Chief Justice, or such Person as for the time being is hereby authorized to have Custody thereof, the said Supreme Court of Judicature in the Island of Ceylon shall be, and is hereby authorized and empowered to demand, seize, and take the said Seal from any Person or Persons whomsoever, by what Ways or Means soever the same may have come to his, her, or their Possession, other than the Person for the Time being hereby authorized and required to have the Custody thereof, and shall forthwith deliver such Seal to the said Chief Justice or to such other Person as shall be for the Time being authorized by these Presents, to have the Custody of such Seal as aforesaid.
xiv. And we do further grant, ordain, appoint, and declare, That the Chief Justice and Puisne Justice shall and may, and so long as they shall hold their said Offices respectively, shall be entitled to have and receive respectively, certain and established Salaries; that is to say, the Chief Justice Five thousand Pounds by the Year, and the Puisne Justice Three thousand Pounds by the Year; and Our Governor, or in his absence from the said Island, Our Lieutenant Governor for the Time being of the said Settlements and Territories in the said Island of Ceylon, is hereby directed and required to direct and cause such Salaries to be paid to the said Chief Justice and Puisne Justice respectively; and such Salaries shall be paid and payable to each and every one of them respectively, out of the Territorial and other Revenues of the said Settlements in the Island of Ceylon, at an Exchange of Eight Shillings Sterling for the Madras Star Pagoda.
xv. And we do further grant, ordain, appoint and declare, That the said Salaries shall commence and take place, in respect to such Persons who shall be resident in Great Britain or Ireland at the Time of their Appointment, upon and from the Day on which any such Person shall thereupon embark, or depart from Great Britain or Ireland for India, to take upon him the Execution of the said Office; and the Salaries of all such Persons who shall a the Time of their Appointment be resident in India, shall commence and take place from and after their respectively taking upon them the Execution of their Office as aforesaid; and that all such Salaries shall be in lien of all Fees of Office, Perquisites, Emoluments, and Advantages whatsoever, save and except such necessary Charges and Expenses as shall be occasioned by the Performance of Circuits throughout the said Settlements in the said Island of Ceylon; which Charges and Expenses shall be regulated by the Governor, or in his Absence from the said Island, the Lieutenant Governor of the said Settlements and Territories in the Island of Ceylon, from Time to Time, and shall be defrayed out of the said Revenues, as soon as conveniently may be after every such Circuit, and in all Cases before the Commencement of the Circuit next ensuing that, during which such Charges and Expenses shall have been incurred.
xvi. And We do hereby give and grant to Our said Chief Justice, Rank and Precedence above and before all Our Subjects whomsoever, within the Island of Ceylon, with the Territories and Dependencies thereof, expecting Our Governor for the Time being of the said Settlements, and in his Absence from the said Island, Our Lieutenant Governor, and expecting all such Persons as by Law and Usage take place in England before Our Chief Justice of Our Court of King’s Bench : And we do hereby also give and grant to Our said Puisne Justice, Rank and Precedence above and before all Our Subjects whomsoever within the said Island of Ceylon, expecting Our said Governor, or in his absence from the Island, Our said Lieutenant Governor, Our said Chief Justice of Our said Supreme Court of Judicature, and the Officer for the Time being commanding Our Forces in the said Settlements ; and also excepting all such Persons as by Law and Usage take place in England before Our Justices of the Court of King’s Bench.
xvii. And We do hereby constitute and appoint Our Trusty and well-beloved Codrington Edmund Carrington of the Middle Temple, Esquire, First Chief Justice, and Our Trusty and well-beloved Edmund Henry Lushington of the Inner Temple Esquire, to be the First Puisne Justice of Our said Supreme Court of Judicature in the Island of Ceylon, the said Codrington Edmund Carrington, and Edmund Henry Lushington, being Barristers in England of Five Years standing, and upwards.
xviii. And We do further, for Us, Our Heirs and Successors, grant, direct, and appoint, that, as soon as may be after the Arrival of this Our Charter at the said Island of Ceylon, and the Proclamation thereof. Our Governor of the said Settlements in the Island of Ceylon, shall nominate and appoint certain Persons to serve the Office of Fiscal throughout the several Districts or Provinces of the said Settlements, during Pleasure ; which Persons so appointed, and having taken the proper Oaths on such Appointment, and having given such Security to Us, Our Heirs and Successors, as the Nature and Responsibility attached to their respective Offices, may in the Discretion of the said Supreme Court, render fit and necessary, shall by themselves, or their sufficient Deputies to be by them appointed, and duly authorized under their respective Hands and Seals, and for whom such Fiscals shall severally be civilly responsible during his or their Continuance in such Office ; and he and they are hereby authorized to execute all the Citations, Monitions, Summonses, Mandates, Rules, Orders, Warrants, Commands, and Process of the said Supreme Court of Judicature in the Island of Ceylon, and to make and certify the Return of the same, together with the Execution thereof, to the said Supreme Court of Judicature , and to receive and detain in Prison such Persons as shall be committed to the Charge of such Fiscals respectively for that Purpose, by the said Supreme Court of Judicature in the Island of Ceylon, and by the Chief Justice and Puisne Justice thereof respectively, and by other the Justices of the Peace and Magistrates, lawfully appointed, throughout the said Settlements and Territories in the said Island of Ceylon.
xix. And We do further direct, ordain, and appoint, That whenever the said Supreme Court of Judicature in the Island of Ceylon, shall direct or decree any Process against any such Fiscal, or direct any Process in any Cause, Matter or Thing, wherein, on Account of his being related to the Parties, or for any other just Cause, it should appear to the said Court to be improper that he should execute the same, in every such case the said Court shall name and appoint some other fit Person to execute and return the same; and the said Process shall be directed to the said Person so to be named for that purpose, and the Cause of such special Proceeding shall be suggested and entered on the Acts of the said Court.
xx. And We do further authorize and empower the Chief Justice of Our said Supreme Court of Judicature in the Island of Ceylon, from Time to Time, as Occasion may require, to nominate and appoint such and so many Registrars, Clerks, and other Ministerial Officers, as shall be found necessary for the Administration of Justice, and the due Execution of all the Powers and Authorities which are and shall be granted and committed to the said Supreme Court of Judicature, by these Our Letters Patent, and as shall be approved of by Our Governor, or in his absence from the said Island, by Our Lieutenant Governor of the said Settlements for the Time being.
xxi. And it is Our further Will and Pleasure, and We do hereby give, grant, direct and appoint, That all and every the Registrars, Officers, Ministers, and Clerks to be appointed as aforesaid, shall have and receive respectively such reasonable Salaries as Our Governor, or in his absence from the said Island, Our Lieutenant Governor of Our said Settlements in the said Island of Ceylon, with the Advice, and by the Recommendation of Our said Supreme Court, shall appoint for each Office and Place respectively.
xxii. Provided always, and it is Our Will and Pleasure, That all and every the Registrars, Officers, Ministers, and Clerks, to be appointed as aforesaid, shall give such reasonable Security, by Bond, to Us, Our Heirs and Successors, as Nature, Charge, and Responsibility attached to their respective Offices may, in the Discretion of Our said Supreme Court, render necessary; and provided that all such Registrars, Officers, Ministers, and Clerks shall be resident within the jurisdiction of the said Court, so long as they shall hold their respective offices.
xxiii. And We do hereby further authorize and empower the said Supreme Court of Judicature in the Island of Ceylon, to approve, admit, and enroll such and so many Persons being properly qualified according to such Rules and Qualifications as the said Court shall for that Purpose make and declare, to act both as Advocates and Proctors, or in either of such Capacities, in the said Court, such Persons having first taken the Oath of Allegiance to Us, Our Heirs and Successors, as to the said Supreme Court shall seem to meet, and the said Advocates and Proctors on reasonable Cause to remove; and no other Person or Persons whatsoever, but such Advocates and Proctors so admitted and enrolled, shall be allowed to appear and plead, or act in the said; Supreme Court, for or on Behalf of such Suitors, or any of them.
xxiv. Provided always, and we do hereby further ordain and declare. That no Person, who shall not be resident in India at the Time of the Publication of this Our Charter, shall be capable of being admitted or enrolled, or of practicing in the said Court. without Our License, to be signified under the Hand of One of Our Principal Secretaries of State for the Time being, for that Purpose first had and obtained; nor shall any Person resident in India at the Time of such Publication, be capable of being so admitted and enrolled, and of so practicing, without the License of Our Governor of Our said Settlements for the Time being, for that Purpose first had and obtained.
xxv. And We do hereby authorize and empower the said Supreme Court of Judicature in the Island of Ceylon, to settle a Table of the Fees to be allowed to such Fiscals, and all other the Registrars, Officers, Clerks, and Proctors aforesaid, for all and every part of the Business to be done by them respectively, which Fees, when approved by Our said Governor of the said Settlements in the said Island, (to whom We hereby give Authority to review the same) the said Fiscals, and other Officers, shall and may lawfully demand and receive, subject to the Proviso hereinafter mentioned: And We do further authorize the said Supreme Court of Judicature, with the like concurrence of the said Governor, from time to time vary the said Table of Fees, as there shall be occasion.
xxvi. And it is Our further Will and Pleasure, and We do require and enjoin the said Court, within One Year after these Our Letters Patent shall have been published in the said Island of Ceylon, and as soon as conveniently may be from the said settling and Allowance of the said Table of Fees, to certify under their several Hands and Seals, and to transmit to One of Our Principal Secretaries of State, to be laid before Us, Our Heirs and Successors, for Our and Their Royal Approbation and Correction, a true Copy of the said Table of Fees, together with the Approbation of Our said Governor; and also any Variation of the said Table to be made as aforesaid. as soon as conveniently may be after the same shall have been so varied. And We further direct and appoint, That the said Table, and the said Alteration or Variation thereof, if any Alteration or Variation shall be made, shall be hung up in some conspicuous part of the Hall or Place where the said Supreme Court of Judicature in the said Island of Ceylon shall be publicly holden.
xxvii. And it is Our further Will and Pleasure, That all and every the Fiscals, Registrars, Officers, Ministers, and Clerks aforesaid, and to whom Salaries shall have been appointed to be paid in Manner herein-before appointed, shall and they are hereby enjoined and required to make regular Entries of all such Fees as they shall receive, and file and exhibit such Entries upon Oath, in the Office of the Registrar of the said Court, which Oath the said Supreme Court is hereby authorized to administer; and all such Registrars, Officers, Ministers, and Clerks, (such Fiscals as aforesaid alone excepted) shall duly account for the same, at such times and in such Manner as the said Court shall direct, for the purpose of being paid over to such Person, and applied to such Purposes as Our Governor of Our said Settlements shall from Time to Time appoint.xxvix. And We do further grant, direct, ordain, and appoint. That the said Supreme Court of Judicature in the said Island of Ceylon, shall be a Court of Civil Jurisdiction for the Town and Fort of Colombo in the said Island, and such District surrounding the same, as shall have been, or shall be, declared by Our Governor of Our said Settlements and Territories for the Time being, to be, and be deemed the District of the said Town and Fort of Colombo; and such Supreme Court of Judicature shall have full Power and Authority to administer Justice and the Law as already declared and conformed, or hereafter to be declared and conformed, by Us and Our Authority, and to take Cognizance of, and proceed in all Civil Causes, Actions, Suites, and Matters which shall or may arise, happen, or be brought or promoted within the said Town and Fort of Colombo, and the said District surrounding the same, upon or concerning any Civil Injuries of what Nature or Kind soever, or any Debts, Duties, Demands or Interests in rem, or any Concerns of what Nature or Kind soever, or any Rights, Titles, Claims, or Demands, of, in, or to any Lands, Houses, or other Property within the said Town, Fort, and District; and the said Causes, Actions, Suites, and Matters with their Incidents, Emergents and Dependents, and whatsoever is thereto annexed, or there with connected, to hear, try, dispatch, discuss, and determine.
xxviii. And We do further direct, ordain, and appoint. That the Civil Jurisdiction of the said Supreme Court of Judicature in the Island of Ceylon, shall extend to and over all and singular the Inhabitants of the said Town and Fort of Colombo, and the District aforesaid; and to and over any Person or Persons who shall, at the Time any such Action or Suit shall have been commenced against him, her, or them, be cormorant, and being within the said Town, Fort, or District, although not domiciled therein; and to and over all Persons, as well British as all others commonly known and distinguished in India, by the Appellation of Europeans, who shall, at the Time any such Action or Suit shall have been commenced, be resident in any the Settlements and Territories, with their Dependencies, which now are or hereafter may be in the Possession of Us, Our Heirs and Successes, in the said Island of Ceylon; and to and over every Person, who shall then have been registered in the Office of the Secretary of Government in the said Island, as a Person licensed to reside within the said Settlements and Territories, with their Dependencies; which several Descriptions of Persons shall be, and are hereby obtained and declared to be, liable to the Jurisdiction, Powers, and Authorities of Our said Supreme Court, and all Process thereof, wheresoever they shall be within the said Settlements, Territories, and Dependencies, or any of them..
xxix. Provided always, That nothing hereinbefore contained shall extend, or be construed to extend to any Causes, Suites, Actions, Matters, and Things, between Natives of the said Island of Ceylon, or of India, or wherein there shall be a na�ve Defendant, which are now competent to be tried and determined in the Provincial Court, commonly called The Landroad of Colombo, if, after the Appointment of this Our Supreme Court, it shall appear expedient to Our Governor of Our said Settlements for the Time being, and beneficial to the native Inhabitants, that the Jurisdiction of the said Landroad of Colombo shall continue to be exercised.
xxx. And provided also, That in the Cases of Cingalese or Mussulman Natives, their Inheritance and Succession to Lands, Rents, and Goods, and all Matters of Contract and Dealing between Party and Party, shall be determined in the Case of Cingalese, by the Laws and Usages of the Cingalese, or in the Case of Mussulmans, by the Laws and Usages of the Mussulmans, and where one of the Parties shall be a Cingalese or Mussulman, by the Laws and Usages of the Defendant.
xxxi. And in all such Cases so to be determined by the Laws and Usages of the said Natives, the said Court shall make such Rules and Orders for the Conduct of the same, and frame such Process for the Execution of their Sentences or Decrees, as shall be necessary, and most consonants to the religious Prejudices and Manners of the said Natives, and to the said Laws and Usages respectively, and to the easy Attainment of the Ends of Justice ; and in all Cases such Means shall be adopted foe compelling the Appearance of Witnesses, and taking their Examination, as shall be consistent with the said Laws and Usages, so that all Suits may be conducted with as much Ease, and at as little Expence, as shall be consistent with the Attainment of substantial Justice.
xxxii. And to the End that Justice maybe administered in the said Supreme Court of Judicature in the Island of Ceylon, with all convenient speed, known Form, and certain Effect, Our Will and Pleasure is and We do hereby grant, ordain, and appoint, That upon any such Cause of Action as aforesaid, it shall be lawful and competent for any Person whatsoever, by himself, or his lawful Proctor, admitted and enrolled as aforesaid, to prefer to the said Supreme Court of Judicature in the Island of Ceylon, and file of Record in the said Supreme Court, a Libel or Summary Petition, in Writing, containing the Cause of Action or Complaint, whereupon the said Supreme Court of Judicature shall, and is hereby authorized to award and issue a Citation in Writing, to be prepared by the Registrar of the said Supreme Court, directed to the Fiscal of Colombo, or other proper Fiscal or Officer, and intimating the Cause of Action set forth in such Libel or Petition, and commanding the said Fiscal to summon the Person against whom the said Libel or Petition shall have been filed, to appear at a certain Time and Place therein to be specified, to answer the said Libel or Petition ; which said Citation, and the Execution therof, the said Fiscal shall duly return, and certify to the said Supreme Court of Judicature; and the Person or Persons so cited shall accordingly appear, and may confess the Libel or Petition, or may plead thereto such Matter of Exception or Defence as he or they shall be advised; and after such Appearance, the said Supreme Court of Judicature shall proceed. from Time to Time, assigning reasonable Days to the said Parties, or to any other Party or Parties lawfully intervening in the said Suit, and alledging an Interest therein, to hear their respective Allegations, as Justice may require. and examine the Truth thereof that is to say, in cases arising out of personal Contract or Obligation, as well on the Oath of the Parties to the Suit, on the Reference of either Party, and where such Oath may lawfully be tendered by the Court, as upon the Oath or Oaths of such competence or credible Witnesses as they shall produce in Court respectively; and in all other Cases upon the Oath or Oaths of such Witnesses as aforesaid ; to which End We hereby authorized and empower the said Supreme Court of Judicature in the Island of Ceylon, at the Request of either of the said Parties, to issue a Citation, to be prepared by the Registrar of the said Supreme Court, or Person acting as such, directed to every One of such Witnesses, commanding him or her to appear at a Time or Place to be specified in such Citation, to depose his or her Knowledge touching the Suit so depending between the Parties, naming them, and specifying at whose request such Citation shall have issued; and upon the Appearance of the said Witnesses, or any of them , the said Supreme Court of Judicature may, and is hereby required to order and decree them each of them, such reasonable Sum of Money for his, her, or their Expense, as the said Supreme Court shall think fit, whether such Witnesses shall be examined or not, the same to be paid forthwith by the Party at whose Request the said Citation shall have issued; and if the said Some of Money so ordered and decreed, shall not be forthwith paid or secured to such Witnesses, to the satisfaction of the said Court, the Party to whom it shall belong to pay the same. shall not only lose the Benefit of such Witness’s Testimony, but shall be compelled to pay him or her the Money so ordered and awarded by such Ways and Process as are herein-after provided for enforcing the Payment and Satisfaction of Money recovered by Sentences of the said Court ; and the said Supreme Court of Judicature in the Island of Ceylon, is hereby authorized and empowered to administer to such Witnesses and others whom they may see Occasion to examine proper Oaths and Affirmations ; that is to say. to such Persons as profess the Christian Religion, the Oath upon the Holy Evangelists of God; and to Quakers, the Affirmation according to the Form used in England for that Purpose; and to others, such Oath in such Manner and Form as the said Court shall esteem most binding on their Consciences respectively ; and the said Supreme Court of Judicature is, on the Hearing of all such Causes as are herein-after declared to be appealable, required to cause the Depositions to be reduced into Wrinting, and subscribe by the several Witnesses, with their Name or other Mark, and to file the same of Record; and in case any Person or Persons so cited shall refuse, or willfully neglect to appear and be sworn, or, being Quakers, to affirm and be examined, or to subscribe such their Depositions as aforesaid, as the Supreme Court of Judicature shall appoint, the said Supreme Court is hereby empowered to punish such Persons so refusing or willfully neglecting, as for a Contempt, by Fine Imprisonment, or other corporal Punishment, not affecting Life or Limb: Provided always, That in special Cases, of the great Age or Infirmity, or of any Witness or Witnesses residing out of the Jurisdiction of the Supreme Court of Judicature, the Depositions of such Witnesses taken by Commission duly issued and executed, may be admitted and read as Evidence in any Civil Suit, saving all just Exceptions thereto.
xxxiii. And We do further give he said Supreme Court of Judicature in the Island of Ceylon, full Power and Authority, upon examining, considering, and taking Informations upon the several Allegations of the said Parties to such Suit, or of the Complainant alone, in case the Defendant shall make Default after Appearance, or shall confess the Libel or Petition, and on hearing the Depositions of the Witnesses produced, sworn, and examined, in Manner above mentioned, or on reading the Depositions of Witnesses examined by Commission, in the Cases herein-before in that Behalf provided, to conclude in the Cause, and to pronounce Sentence according to Justice and Right; and also to order and decree such Costs to be paid by either or any of the Parties to the other or others, as they the said Court shall think just.
xxxiv. And We do further authorize and empower the said Supreme Court of Judicature in the Island of Ceylon, to decree and issue a Mandate of Execution, to be prepared in Manner before mentioned, and directed to the said Fiscal for the Time being, commanding him to seize and deliver the Possession of Houses, Lands, or other Things, recovered in and by such Sentence, or to levy any Sum of Money which shall be so recovered, or any Costs which shall be so decreed, as the Case may require, by seizing and selling so much of the Houses, Lands, Debts, or other Effects moveable or immoveable of the Party against whom such Mandate shall be issued, as will be sufficient to answer and satisfy the said Sentence, or to take and imprison the Body of such Party or Parties, until he or they shall make such Satisfaction, or to do both, as the case shall require, And We do further order, direct, and appoint, that the several Debts to be seized and sequestered as aforesaid, shall, from the Time the same shall be sequestered or returned into the said Supreme Court of Judicature, be paid and payable in such Manner and Form, as the said Supreme Court of Judicature shall upon, and no other./, and such Payments, and no other, shall from thenceforth be an absolute and effective Discharge for the said Debts, and every of them respectively.
xxxv. And, in case any Party so cited to appear on any Libel or Petition so filed as aforesaid, shall not appear upon the Return of the Citation according to the Penalty thereof, We do further authorized and empower the said Supreme Court of Judicature, to decree and issue a Mandate of Arrest, to be prepared in Manner above mentioned, and directed to the said Fiscal, commanding him to arrest and seized the Body of such Person so making Default, and to have his said Body at such Time and Place as shall be specified in the said Mandate for that Purpose, before the said Supreme Court, to answer the said Libel or Petition; and the said Supreme Court may, if it should be thought properly, by the said Mandate, authorize the said Fiscal, to take such Bail for the Appearance of the said Defendant, as the said Supreme Court shall think fit to direct, and upon such Appearance the said Defendant may plead in such Manner, as if he had appeared upon the Return of the Original Citation.
xxxvi. And, if the Cause of Action contained in any such Libel or Petition shall be Personal, and of more Amount in Value than One hundred Rix Dollars of Current Money of Ceylon, and the Plaintiff by Affidavit, or being a Quaker, by Affirmation in Writing to be filed of Record, shall satisfy the said Supreme Court of Judicature, that the Defendant is justly and truly indebted to him, in a greater Sum than One Hundred Rix Dollars, aforesaid; or shall by like Affidavit or Affirmation to be filed as aforesaid, verify, to the Satisfaction of the said Supreme Court, a Case of such enormous personal Wrong done to the said Plaintiff, or that the said Defendant is so vehemently suspected of intending to flee and withdraw himself from the Jurisdiction of the said Supreme Court, as in the Judgment of the said Court, to render such Security necessary for the Purpose of Justice, the said Supreme Court of Judicature, in the Island of Ceylon, shall, and is hereby authorized and empowered to award and issue, in lieu of the Citation aforesaid, Mandate of Arrest, to be prepared in Manner above mentioned and directed to the said Fiscal commanding him to arrest and seize the Body of such Defendant, and to have his said Body at a Time and Place in the said Mandate to be specified, before the said Court, to answer the said Libel or Petition, and to give sufficient Bail, to be approved of by the said Supreme Court, that he will stand to and perform the Sentence of the said Supreme Court upon the Premises, and pay all such Sum or Sums of Money as shall thereby decreed; and the said Supreme Court of Judicature may, in and by the said Mandate, authorize the said Fiscal, to deliver the Body of such Defendant so arrested to sufficient Bail, upon their sufficient Stipulation and Security given, that such Defendant shall appear at the Time and Place mentioned in such Mandate, and in all Things perform and fulfill the Exigence thereof; and upon the Appearance of such Defendant in and before the said Supreme Court of Judicature, We do hereby authorize and empower the said Supreme Court to commit him to Prison, to the Custody of the said Fiscal, unless, or until he shall give Security to the Satisfaction of the Supreme Court, to perform the Sentence thereof, and pay all such Sum or Sums as shall be decreed thereby; which Security We hereby empower the said Court to take, and thereupon to deliver the Body of the said Defendant upon Bail; and if the said Fiscal shall return to either the said Citation of Intimation, or the said Mandate, that the said Defendant (in case the Domicile or Place of Abode of such Defendant was within the Town, Fort, or District of Colombo aforesaid, within One Month then last past), is not to be found within the said Town, Fort, or District, or in case the Domicile or Place of Abode of such Defendant was not so within the Town, Fort, or District of Colombo aforesaid, but within any other the said Settlements or Territories with their Dependencies, the said Fiscal shall return, that the Defendant is not to be found within the Jurisdiction of the said Supreme Court of Judicature, in the Island of Ceylon, and the Plaintiff shall by Affidavit, or being a Quaker, by Affirmation, in Writing or otherwise, to the Satisfaction of the said Supreme Court of Judicature, may Proof, verifying his Demand; We do hereby grant, ordain, and appoint, that the said Supreme Court of Judicature shall and may decree and issue a Mandate of Sequestration, to be prepared in Manner abovementioned, and directed to the said Fiscal, commanding him to seize and sequester the Houses, Lands, Goods, Effects, and Debts of such Defendant, to such Value as the said Supreme Court of Judicature shall think reasonable and adequate to the said Cause of Action so verified as aforesaid, and the same to detain, till such Defendant shall appear and abide such Order of the said Supreme Court of Judicature, as if he had appeared on the former Process; and the said Supreme Court of Judicature shall, and is hereby authorized and empowered, according to their Discretion, either to cause the said Goods to be detained in Specie, or to be sold, and to give Four several Days to such Defendant by Proclamation in open Court from Time to Time, not exceeding One Year in the Whole; and if such Defendant shall make Four several Defaults, and shall not appear on the last Day, which the said Court in their Discretion shall think proper to give, it shall be lawful, and the said Supreme Court of Judicature in the Island of Ceylon, is hereby authorized and empowered to proceed ex parte in Pain of the Contumacy of such Defendant, to hear, examine, and determine, the said Cause summarily, and give such Sentence therein, and decree such Costs as aforesaid; and if Sentence shall in such case pass for the Plaintiff, the said Supreme Court of Judicature is hereby authorized and empowered to decree and issue a Mandate of Execution to the said Fiscal, to be prepared in Manner above-mentioned, commanding him to sell the said Houses, Lands, Goods, Effects, and Debts so seized and sequestered, and to make Satisfaction out of the Produce thereof to the Plaintiff, for the Sum or Thing so recovered, and his Costs, and to return the Over plus, if any there be, after satisfying such Sentence and Costs, and the Expences of such Sequestration, to such Person, in whose Possession the said Effects were seized, or otherwise to reserve them for the said Defendants as Occasion shall require; and if such Effects shall not be sufficient to produce the Sum of Value so recovered, and the said Costs, the said Supreme Court of Judicature is further empowered to decree and issue such farther, Process of Execution for the Deficiency, as is heretofore provided for levying Money recovered by Sentence, and the Costs; and if Sentence shall in such last-mentioned Case pass for the Defendant, the said Supreme Court of Judicature, in the Island of Ceylon, is authorized and empowered to award and order the Costs of the said Suit, and the Expense of the said Sequestration. and all the Damages occasioned thereby, to be paid by the said Plaintiff to the said Defendant or his Proctor, or to the Person in whose Possession the said Effects were sequestered, and the same shall be raised by such Process. Time of their being so sequestered and returned into Court, shall be payable in such Manner as the said Supreme Court of Judicature shall direct, and no other.
xxxvii. And is it Our further Will and Pleasure, and We do hereby, for Us, Our Heirs and Successors, grant, ordain, and establish, that the said Supreme Court of Judicature in the Island of Ceylon shall also be a Court of Equity, and shall and may have full Power and Authority, to Administer Justice in a summary Manner, according to the Law now established in the said Settlements in the Island of Ceylon, and in Point of Form, as nearly as may be, according to the Rules and Proceedings of our High Court of Chancery in Great Britain; and upon a Bill filed, to issue Subpoenas, and other Process under the Seal of the said Supreme Court of Judicature, to compel the Appearance, and Answer upon Oath, of the Parties therein complained against and. Obedience to the Decrees and Orders of the said Court of Equity. in such Manner and Form, and to such Effect, as Our High Chancellor of Our United Kingdom of Great Britain and Ireland, doth or lawfully may, under Our Great Seal of Our United Kingdom of Great Britain and Ireland.
xxxviii. Provided always, and We do hereby ordain, appoint, and declare, That the equitable Jurisdiction hereby given to the said Court, shall extend and be construed to extend over each Limit, District, and Persons only, as is and are herein-before declared and directed, to be subject to the Supreme Court, in the Exercise of its ordinary Civil Jurisdiction.
xxxix. And We do hereby (subject to the Provision and Restriction last mentioned), authorize the said Supreme Court of Judicature in the Island of Ceylon, to appoint Guardians and keepers for Infants and their Estates, according to the Order and Course observed in that Part of our United Kingdom called England; and also Guardians and Keepers of the Persons and Estates of natural Fools, and of such as are or shall be deprived of their understanding or Reason by the Act of God, so as to be unable to govern themselves and their Estates, which We hereby authorize and empower the Supreme Court of Judicature in the Island of Ceylon, to enquire, hear, and determine by Inspection of the Person, or other Ways and Means, by which the Truth may be best discovered and known.
xl. And it is Our further Will and Pleasure, and We do hereby for us, Our Heirs and Successors, grant, ordain, and establish, that the said Supreme Court of Judicature in the Island of Ceylon, shall also be a Court of competent Jurisdiction in causes relative to our Revenue, arising, within or from the said Settlements and Territories in the Island of Ceylon, with their Dependencies; and the said Court shall and may, in all Cases wherein any Debt or Duty shall have accrued to Us Our Heirs or Successors, or wherein any Right, Interest, Claim, or Demand of Us Our Heirs and Successors, shall or may have accrued, or be concerned, within the said Settlements and Territories, with their Dependencies, have full Power and Authority to administer Justice, as nearly as may be, according to the Rules and Orders of Our Court of Exchequer in Great Britain, and upon an Information filed by Our Advocate Fiscal to be appointed by Us, or in his Absence by the Person acting as such; to be appointed by Our said Governor for the Time being, to issue Subpoenas and other Process, as well in personam as in rem, under the Seal of the said Supreme Court of Judicature in the Island of Ceylon, and to proceed therein to enquire, hear, determine, and give Sentence according to Justice and Right.
xli. Provided always, That no such Information shall be filed by Our said Advocate Fiscal, or the Person acting as such, without the Warrant of Our said Governor for the Time being, directing him to prosecute such Suit on Our Behalf, nor shall the said Supreme Court of Judicature in the Island of Ceylon, take Cognizance of any such Information, unless such Warrant be filed therewith.
xlii. And it is Our farther Will and Pleasure, and We do hereby grant, direct, ordain, and appoint, That the said Supreme Court of Judicature in the Island of Ceylon, shall administer Criminal Justice, and shall enquire, take Cognizance of, and try, hear, and determine, and promulge Sentence, and order Execution, (save and except in such Cases as are herein-after specially excepted), upon and against all Treasons, Murders, culpable Homicides, Rapes, Thefts, Robberies, Forgeries, Perjuries, Concussions, Trespasses, and other Crimes, Offences, Misdemeanors, and Oppressions, done or committed, or which shall be done or committed, by any Person or Persons whomsoever, within any of the Settlement and Territories in the Island of Ceylon, with their Dependencies now in Our Possessions, or which, or shall or may hereafter be in our Possession; and that the said Criminal Jurisdiction shall be exercised in and during such Places, Times, and Circuits, within any of the said Settlements and Territories with their Dependencies, as to the said Supreme Court of Judicature, with the Concurrence Our Governor, or in his Absence of Our Lieutenant Governor of the said Settlements in Manner herein-after provided, shall seem expedient for the Purposes of Justice and the speedy and due Administration thereof, throughout the Whole of our Territorial Jurisdiction in the said Island of Ceylon; and for that purpose the said Court shall and may issue their Mandate under their Seal, and directed to all or any of the Fiscals or other Keepers of Prison within the Jurisdiction aforesaid, to certify to the said Court the several Persons then in their or any of their Custody, committed for any of the said Crimes, Offences, or Charges; and the said Fiscals or other Keepers of Prison, shall and are hereby required to make, certify, and transmit due Returns to such Mandate, by specifying in a Calendar or List to be annexed to such Mandate respectively, the Time and Times when all and every of the said Persons so in their Custody was or were committed, and by whose Authority particularly, and on what Charge or Charges, Crime or Crimes respectively,; annexing also to such Mandate, such Information or Informations upon Oath, as may have been taken against them, or any of them, and then remaining in the hands of the said Fiscals, or true Copies thereof attested by the said Fiscals or Keepers of Prison respectively; or if need be, according to the Tenor and Exigence of such Mandate, to bring the said Person so in their Custody or any of them, before the said Supreme Court, wheresoever the said Court shall then be held, within the Limits and Jurisdiction aforesaid, together with such Witness or Witnesses whose Name or Names shall appear to be written or indorsed on the respective Commitments, by virtue of which such Prisoners or Prisoner were or was delivered into their Custody respectively, in order that such Prisoners or Prisoner may be dealt with according to Law.
xliii. Provided always, That, wherever any Party or Parties shall, after the making out of any such Calendar or List, and while such Supreme Court shall be remaining in the Town or Place; wherein such Calendar or List was delivered, be apprehended or committed on any Criminal Charge, it shall be lawful for the Registrar of the said court, or Person acting as such to insert the Name or Names of such Person or Persons in such Calendar or List.
xliv. And, to the End that Criminal Justice may be administered in and by the Supreme Court of Judicature in the Island of Ceylon, with all convenient speed, known form and certain Effect, We do hereby further ordain and command, That the Trial of all and every such Prisoner and Prisoners shall be had and proceeded upon, conducted, and finally determined, in Manner and Form following; that is to say, On the Day to be appointed by the said Supreme Court of Judicature in the Island of Ceylon, for holding a Sessions for the Trial of Offenders, at any Town or Place within the said Settlement and Territories with their Dependencies, the said Court shall command that the said Prisoners be brought, and the said Prisoners shall accordingly be brought before the said Supreme Court, and thereupon the Registrar of the said Supreme Court in its Criminal Jurisdiction, or the Person acting as such for the Time being with the consent and Approbation of the Court, shall openly and distinctly read a Libel, which shall be styled the Libel of Accusation, against such Prisoner or Prisoners, upon which they or any of them is or are to be tried, and We will, ordain, and direct that such Libel or Accusation shall have been and be previously prepared, by such Registrar or Person acting as such, and allowed, and signed by Our Advocate Fiscal, to be appointed by Us, or in his Absence by the Person acting as such to be appointed by Our Governor of the said Settlements for the Time being and that the Particular Fact or Facts, Crime or Crimes, Offence or Offences, of which such Prisoner or Prisoners is or are respectively accused, with the Time and Place when and where the same is or are believed or charged to have been committed, shall be set forth in such Libel, and that the same shall conclude with a Demand in the Name of Us, Our Heirs and Successors, that the Matter therein contained be enquired of by the Court, and that Justice be duly administered between Us, Our Heirs and Successors, and the Party or Parties accused; and after such Libel shall have been so read as aforesaid, such Prisoner shall be asked by the Registrar of the said Supreme Court or the Person acting as such, whether he be guilty of the Offence or Crime whereof he is accused, or not guilty; whereupon every such Prisoner shall, if he shall require such Delay, be withdrawn from the said Supreme Court and, after the Space of One Day at the least, shall again be brought before the Court and may then propound to the Court any Exception of Law to the said Libel which he may be advised or think fit to propound, on which Exception the said Supreme Court of Judicature shall proceed to decide according to Law ; and if such Libel be dismissed or quashed for any substantial Defect or Insufficiency in the frame thereof, the said Supreme Court shall if they think fit remand the Prisoner or Prisoners, and direct the proper Officer to prepare another Libel or Accusation, so that the Prisoner or Prisoners may be effectively tried thereon; Nevertheless, it is Our Will and Pleasure, and We do hereby direct, ordain, and declare, that no Part of the said Libel save and except the Allegation of the Fact or Facts, Crime or Crimes, Offence or Offences, whereof such Party is accused, shall be deemed by the said Supreme Court, Matter of Substance nor shall any such Libel be dismissed by the said Court for any alleged Defect in the mere Form thereof; but in case such Prisoner do not require such Delay as aforesaid, nor propound any such Matter or Exception or if the same be not allowed by the Court, such Prisoner shall immediately plead thereto, Guilty or Not Guilty.
xlv. Provided always, That if any such Prisoner do contumaciously neglect or refuse to plead thereto, the said Court shall cause such Neglect or Refusal to be registered in the Acts of the Court, and shall proceed to the Examination of the Witnesses, and to Sentence of Acquittal or condemnation, as the Case shall require, in like Manner as if such Prisoner had pleaded Not Guilty thereto.
xlvi. But in case any Prisoner shall plead Not Guilty, a reasonable Time shall be allowed him to obtain the Presence of the Witness or Witnesses whom he shall state to be necessary for his Defence, and compulsory Process, if necessary, shall be decreed against such Witnesses, to enforce their Attendance; and on the Day of the Trial, the Libel against such Prisoner shall, if such Prisoner require the same, be again openly and distinctly read by the Registrar of the said Court, or the Person acting as such as aforesaid, and the Witnesses that shall appear to substantiate such Charge shall be duly sworn, in such Manner and Form as the said Court shall deem most binding on their Consciences, and shall be respectively examined, openly viva voce and in the Presence of the Prisoner ; and after a Witness hath answered all the Questions proposed on the Part of the Prosecution, and given his Evidence, it shall and may be lawful for the Prisoner to have the Witness cross-examined by his Advocate or Proctor, or if he have no Advocate or Proctor, by first declaring to the said Supreme Court what Question he would have asked; and thereupon, the Court, if they shall deem such Question in point of Law fit to be put, shall interrogate the Witness accordingly, and the Prisoner shall then have Liberty to produce the Witnesses who shall appear in his Defence, who shall be sworn and examined upon Oath, in such Manner and Form as the said Supreme Court shall esteem most binding on their Consciences, and afterwards the Prisoner or his Advocate or Proctor shall be impartially and attentively heard in his Defence; Whereupon the said Supreme Court having considered of the Evidence which hath been given the circumstances of the Case, and the Law as applying thereto, shall thereafter, as soon as conveniently may be, publicly, and in the Presence of the Prisoner, pronounce and publish their Determination on the Validity of the Charge whereof such Prisoner hath been accused as aforesaid, in the words Guilty, or Not Guilty, or specially as the Case may require; and which Determination shall be then duly entered as of Record by the said Registrar, or Person acting as such as aforesaid, by indorsing the same as the Act of the Court on the Back of the said Libel whereon such Prisoner or Prisoners was or were tried, and thereupon, or at any Time before the Departure of the said Court from the Town or Place where such Trial shall have been had, the Chief Justice or the Puisne Justice of the said Supreme Court shall publicly, and in the Presence of the Party convicted, pronounce and publish the Sentence of the Court on such Party convicted, which Sentence shall be duly entered of Record as the Act of Court, by the Registrar, or Person, acting as such, by indorsing the same on the Back of the said Libel; and the said Chief Justice or Puisne Justice shall sign the Calendar of List of the Prisoners’ Names with the respective Sentence so pronounced and published on each of such Prisoners, written and inserted in the Margin of such Calendar, and opposite to every such Prisoner’s Name ; which Sentence shall specify the punishment to be inflicted on each of the said Parties convicted, with the Day and Place when and where the said Sentence shall be carried into Execution ; nor shall any further or other Matters or Forms be deemed material or necessary, to the Validity of any such Sentence or to be inserted therein; and Our said Chief Justice or Puisne Justice shall cause the said Registrar, or the Person acting as such, to re-deliver the said Calendar, or List so signed to the said Fiscal, or other Keeper of Prison, and the same shall be his sufficient Warrant to carry all and every such Sentences of the said Supreme Court of Judicature in the Island of Ceylon, into Execution accordingly ; save and except that in every Case where any Person shall have been adjudged to die by such Sentence as aforesaid, the Execution of such Sentence shall be respited until the Case of such Person shall have been reported by the Chief Justice or Puisne Justice, who shall have passed such Sentence, to the Governor, or in his Absence from the said Island, to the Lieutenant Governor of the said Settlements and Territories for the Time being, which said Report shall be made as soon after the passing such Sentence as conveniently may be; and if such Governor or Lieutenant Governor shall think it proper that such Sentence should be executed, he shall thereupon sign or cause the Chief Secretary of Government to sign a Warrant for the Execution of such convicted Person; and shall cause the same to be delivered to the Fiscal or other Keeper of Prison where such Person shall be confined; and the same shall be his sufficient Warrant to carry all and every such Sentences of the said Supreme Court into Execution.
xlvii. Provided always nevertheless, That all interior Offences, Breaches of the Peace, and Disorders against the Police, the Cognizance of which formerly belonged to the inferior Magistrates, shall be tried and punished by and before such Justice of the Peace, or Magistrates, as shall for that Purpose be appointed by Our Governor of Our said Settlements for the Time being, and according to such Regulations as shall in that Respect be established, published, and declared by Our said Governor.
xlviii. And it is Our further Will and Pleasure, and We do hereby ordain, direct, and declare, That from and after the Publication of this Our Charter, it shall and may be lawful and competent to Our said Supreme Court of Judicature in the Island of Ceylon, in all Cases, wherein, from the Nature and alledged Circumstances of the Accusation, One Witness only can reasonably be expected to give Evidence of any particular Fact, to receive and admit the Testimony of One credible Witness, in any criminal Prosecution or Proceeding, instituted, or to be instituted or proceeded in, by and before the said Court; and the Testimony of such credible Witness may, to all Intents, Purposes, and Effects of the Law whatsoever, be deemed sufficient and conclusive Evidence to the said Court of any Fact deposed by such Witness, as of his own Knowledge, any former Law, provincial or other Statute, Usage, or Custom, to the contrary notwithstanding.
xlix. Provided nevertheless, That in all Cases of Perjury, the Testimony of Two Witnesses to the very Fact whereby the said Crime is charged to have been committed, shall be requisite to the Conviction of any Person tried for any such Crime.
l. And it is Our further Will and Pleasure, and We do hereby grant, ordain, establish, and appoint, that the said Supreme Court of Judicature in the Island of Ceylon, shall be a Court of competent Jurisdiction in all Testamentary and Matrimonial Causes, Suits, and Business, over all and singular the Inhabitants of the said Town, Fort, and District of Colombo; and over all Persons, as well British, as all others, commonly known and distinguished in India, by the Appellation of Europeans, resident in any of the said Settlements and Territories, with their Dependencies; and over all Persons who shall have been registered in the Office of the Secretary of Government, as licenced to reside in the said Settlements, Territories, or Dependencies; and in all such Testamentary Causes, Suits, and Business, towards and upon the Goods, Chattels, Credits, and Effects of such Persons as were in their Lifetime, or at the Time of their Decease, so respectively subject to the said Jurisdiction; and towards and upon the Goods, Chattels, Credits, and Effects of all Persons who shall, at the Time of their Decease, have left Goods, Chattels, Credits, and Effects within the said Town, Fort and District of Colombo: And the said Supreme Court of Judicature shall have Power and Authority to take Cognizance of, and proceed in all such Testamentary and Matrimonial Causes and Suits, and Business, and the same, with their Incidents, Emergents, and Dependents, and whatsoever is thereto annexed and therewith connected, to hear, dispatch, discuss and determine.
li. Provided always, That in all such Causes, Suits, and Business, the said Supreme Court of Judicature do proceed and administer the Law, in substance, as follows, (that is to say), Toward and upon all the Dutch Inhabitants of the said Town, Fort, and District, according to the Laws and Usages in that Behalf in force at the Time the said Settlements, Territories, and Dependencies, came into Our Possession; and towards and upon the said British and Europeans, and licenced Person herein-before described, resident in any the said Settlements, Territories, and Dependencies, the Ecclesiastical Law, as the same is now used and exercised in the Diocese of London, in Great Britain.
lii. And provided also, That the Jurisdiction in Matrimonial Causes hereby committed to Our said Supreme Court, shall not extent or be construed to extent to or over the Natives of the said Island of Ceylon, or Persons usually known and distinguished in India by the Appellation of Natives.
liii. And We do hereby further grant, ordain, establish, and appoint, That the said Supreme Court of Judicature in the Island of Ceylon, shall grant Probates under the Seal of the said Court, of the Wills and Testaments of such Persons as are herein-before in that Behalf describe, dying within the said Island of Ceylon, and commit Letters of Administration under the Seal of the said Supreme Court, of the Goods, Chattels, Credits, any other Effects whatsoever, of such Persons as herein-before in that Behalf described, who shall die intestate within the said Island of Ceylon; or who shall have left Goods, Chattels, Credits, and Effects within the said Town, Fort, or District of Colombo; or who shall not have named an Executor resident within the Jurisdiction of the said Supreme Court; or where the Executor, being duly cited according to the Form now used for that Purpose in the said Diocese of London, shall not appear, and sue forth such Probate; annexing the Will to the said Letters of Administration, where such Persons shall have left a Will without naming any Executor who shall then be alive and resident within the said Island of Ceylon, and who, being duly cited thereto will appear and sue forth Probate thereof ; and to sequester the Goods, Chattels, Credits, and other Effects whatsoever of such Persons so dying, in cases allowed by Law, as the same is and may now be used in the said Diocese of London ; and to demand, require, take, hear, examine, and allow, and if occasion require, to disallow and reject the Account of them, in such Manner and Form as is now used in the said Diocese of London , and to do all other Things whatsoever needful and necessary in that Behalf.
liv. Provided always and We do hereby authorize and require the said Supreme Court of Judicature, in the Island of Ceylon, in such Cases, as aforesaid, where Letters of Administration shall be committed with the Will annexed, for Want of an Executor appearing in due Time to sue forth the Probate, to receive in such Letters of Administration full Power and Authority to revoke the same, and to grant Probate of the said Will to such Executor whenever he shall duly appear and sue forth the same.
lv. And We do, hereby further authorize and require the said Supreme Court of Judicature in the Island of Ceylon, to grant and commit such Letters of Administration, according to the Form now used, or which lawfully may be used, in the said Diocese of London, to the lawful next of Kin of such Persons so dying as aforesaid, being then residing within the Jurisdiction of the said Court, and of the full Age of Twenty-one Years: and in case no such Person then be residing within the Jurisdiction of Our said Supreme Court of Judicature in the Island of Ceylon, or being duly cited, shall not appear and pray the same and make out such their claim to the Administration of the Effects of the Intestate deceased, to the Satisfaction of the said Court, it shall and may be lawful for the Registrar of the said Supreme Court of Judicature in the Jurisdiction aforesaid, and he is hereby required to apply for, and such Court is hereby required and directed to grant such Registrar, such Letters ad Colligenda, or of Administration, as to such Court shall seem meet; by virtue whereof such Registrar shall collect the Assets of the Deceased, and shall, under the Direction and subject to the Control of the said Supreme Court, bring in such Assets, or where it shall be necessary, shall sell and convert the same into Money, and from Time to Time, as often as the same shall amount to the Sum of Five hundred Rix Dollars of Current Money of Ceylon, or Fifty Pounds of lawful Money of Great Britain, shall pay the same into our Treasury in the said Island, in which proper and distinct and separate Books and Accounts thereof shall be Regularly kept, and such Registrar shall regularly account for such Assets, and the Disposal thereof to the said Supreme Court of Judicature, at such Periods, and in such Manner, as the said Court shall direct; and the said Supreme Court is hereby authorized and required to assign to the said Registrar, and the said Registrar shall be entitled to retain out of and from the Amount of such Assets, such Allowance or per Centage, as the said Court shall in their Discretion think reasonable for his Trouble, in the Collection and Administration of the Estates of such Persons dying Intestate as aforesaid: Provided always, That when any next of Kin, who, at the Time of the Return of the above mentioned Citation, shall have been absent in Europe or elsewhere, shall make and establish his or their Claim to the Administration of the Assets of such Intestate, the Letters ad Colligenda or of Administration, so granted by virtue hereof to the said Registrar shall be recalled, and Administration in due Form granted to such next of Kin respectively.
lvi. And We do hereby further enjoin and require, That every Person to whom such Letters of Administration shall be committed, and that such Registrar also, in Cases where Letters ad Colligenda or of Administration have been officially granted to him as above by these Presents is ordained, (in Cases where the said Supreme Court shall deem an additional Security necessary to be given by such Registrar), shall, before the granting thereof, give sufficient Security by Bond to Us, Our Heirs and Successors, for the Payment of a competent Sum of Money, (and as to any Person other than and except such Registrar as aforesaid), with Two or more able Sureties, Respect being had in the Sum therein to be contained, and in the Ability of the Sureties, to the estimated Value of the Estate, Credits, and Effects of the Deceased, (such Value to be summarily ascertained by a Commission of Appraisement and Valuation, to be issued by the said Court, if they shall think it expedient), which Bond shall be deposited in the said Supreme Court among the Records thereof, and there safely kept, and a Copy thereof shall also be registered among the Proceedings of the said Supreme Court, and the Condition of the Bond shall be to the following Effect: “that if the above-bounden Administrator of the Goods, Chattels, and Effects of the Deceased, do make or cause to be made a true and perfect Inventory of all and singular the Goods, Credits, and Effects of the said Deceased, which have or shall come to the Hands, Possession, or Knowledge of him the said Administrator, or the Hands or Possession of any other Person or Persons for him, and the same so made, do exhibit or cause to be exhibited into the Supreme Court of Judicature in the Island of Ceylon at or before a Day therein to be specified, and the same Goods, Chattels, Credits and Effects, and all other the Goods, Chattels, Credits, and Effects of the said Deceased at the Time of his Death, or which at any Time afterwards shall come to his Hands or Possession or to the Hands and Possession of any other Person or Persons for him, shall well and truly administer, according to Law, and further shall make or cause to be made a true and just Account of his said Administration, at or before a Time therein to be specified ; and all the Rest and Residue of the said Goods, Chattels, Credits and Effects, which shall be found remaining upon the said Administration Account, the same being first examined and allowed of by the said Supreme Court of Judicature in the Island of Ceylon, shall deliver and pay unto such Person or Persons respectively, as shall be lawfully entitled to such Residue; then this Obligation to be void and of none Effect, or else to remain in full force and virtue..
lvii. And in case it shall be necessary to put the said Bond in Suit, for the Sake of obtaining the Effect thereof for the Benefit of such Person or Persons, as shall appear to the said Supreme Court of Judicature to be principally interested therein, (such Person and Persons from Time to Time paying all such Costs as shall arise from the said Suit or any Part thereof) such Person or Persons shall, by Order of the said Supreme Court, be allowed to Sue the same in the Name of Us, Our Heirs and Successes, and by Our Advocate Fiscal, for the Benefit of the Parties interested therein, and the said Bond shall not be sued in any other Manner.
lviii. And We do hereby further will, ordain, and declare, That it shall and may be lawful to and for the said Supreme Court of Judicature in the Island of Ceylon, in any Part of its Jurisdictions, by Commission or Commissions under the Seal of the said Court, to authorized and appoint any fit or proper Person or Persons, either generally or in particular Case, to receive the Acknowledgments and Stipulations of Bail, and to administer Oaths for the Justification of Bail, and for the taking of any Affidavit or Affirmation, or for receiving and taking the Answer, Plea, Demurrer, Exception, Disclaimer, or Examination of any Party or Parties to any Suit, or for the Examination of any Witness or Witnesses upon Interrogatories, either Provisional or in Chief, or on any other Occasion, and for the swearing Executors and Administrators in any Suit, Matter, or Proceeding, which may be pending or about to be instituted in the said Court upon such Occasions as the said Court shall think fit to issue such Commission; and We direct and ordain that the such Commission or Commissions so to be issued, shall respectively be executed, acted under and returned, if the same shall require any Return, by the Person or Persons to whom such Commission or Commissions shall have been directed respectively.
lix. Provided always, That nothing herein contained shall extend to authorize or empower the issuing of any Commission or Commissions for the Examination of any Witness or Witnesses upon any Criminal Proceeding for any Offence whatsoever, to be tried and determined by and before the said Court.
lx. And We do further will and ordain, that all the Monies, Securities, and Effects of the Suitors of the said Court which shall be ordered into Court, or to be paid, delivered or deposited for safe Custody, shall be paid or delivered unto, or deposited with the Treasurer or Person acting as such of the Government of our said Settlements in the Island of Ceylon, to be by him kept and deposited in the Treasury of the said Government, subject to and directions, as the said Supreme Court of Judicature shall from Time to Time think fit to make concerning the same, for the Benefit of the Suitors.
lxi. And We do for Us, Our Heirs and Successors, give and grant unto Our said Governor for the Time being, full Power and Authority, from Time to Time to order and direct that the Treasurer of Our said Government, or the Person acting as such, shall also act as the Accountant General of the said Supreme Court of Judicature, and shall perform and do all Matters and Things relating to the Payment or Delivery of the Suitors Money, Effects, and Securities into the said Treasury, and the taking the same out again, and keeping the Accounts thereof with the Registrar of the said Supreme Court of Judicature, and all other Matters relating thereto, under such Rules, Methods, and Directions as shall from Time to Time be made and given by the said Supreme Court, which Rules, Methods, and Directions We will and direct, shall be according to such Rules, Methods, and Directions, as are observed by the Accountant General of Our High Court of Chancery in Great Britain, or as near thereto as may be, and as the Situation and Circumstances of Affairs will permit.
lxii. And We do hereby reserve to Ourselves, Our Heirs and Successors, all Amerciaments, Fines, and Forfeitures to be set ad imposed by the said Supreme Court of Judicature in the Island of Ceylon, or otherwise incurred.
lxiii. Provided always, That it shall be lawful, and We do hereby authorize and empower the said Supreme Court of Judicature, to make such Satisfaction to Prosecutors, as to the said Court shall seem reasonable and fit, out of any Fines to be by them set or imposed upon any Person or Persons who shall be convicted on such Prosecution.
lxiv. And it is Our further Will and Pleasure, and We do hereby direct, establish, and ordain, that if any Person, or Persons shall find him, her, or themselves aggrieved by any interlocutory Sentence, or Determination having the effect of a Definitive Sentence, or by any Definitive Sentence, of the said Supreme Court of Judicature in the Island of Ceylon, in any Civil Cause, Matter, or Thing whatsoever, it shall and may be lawful for him and them, by his or their humble Petition, to be preferred for that purpose to the said Supreme Court, to pray Leave to appeal to Us, Our Heirs and Successors, in Our or their Privy Council: Provided always, That no such Appeal shall be allowed by the Supreme Court, unless the Value of the Matter in Dispute shall exceed the Sum of Five Hundred Pounds of lawful Money of Great Britain or Five thousand Rix Dollars of the lawful Currency of Ceylon.
lxv. Provided, That in all Cases in which an Appeal shall have been admitted unto Us, Our Heirs and Successors, in Our or their Privy Council, Execution shall be suspended until the final Determination of such Appeals, unless good and sufficient Security be given by the Appellee, to make full Restitution of all that the Appellants shall have lost by means of such Decree or Judgment, in case upon the Determination of such Appeal, such Decree or Judgment should be reversed, and Restitution ordered to the Appellant.
lxvi. And provided always, That in all Cases of Appeal whatsoever, such Appeal be interposed, within Fourteen Days after the Day of pronouncing the Judgment, Sentence, Decree, or Order complained against, and that good Security be given by the Appellant, as well that he will effectually prosecute the same, and answer the Condemnation, as also pay such Costs and Damages as shall be awarded by the Court of Appeal, in case the Sentence in the former Instance be affirmed.
lxvii. Provided always, That every Appellant do in his Petition of Appeal, shortly state the Cause or Causes of Appeal whereon such Appellant means to rely.
lxviii. And it is Our further Will and Pleasure, and We do hereby direct and ordain, That in all Cases of Appeal to Us, Our Heirs and Successors, in Our or their Privy Council, from the said Supreme Court of Judicature in the Island of Ceylon, the said Court shall certify and transmit under the Seal of the said Court to Us, Our Heirs and Successors, in Our or their Privy Council, a true and exact Copy of all the evidence, Proceedings and Sentences, interlocutory or definitive, as the Case may require, has or made in such Causes appealed.
lxix. And it is our further Will and Pleasure, That in all Cases of Criminal Suit and Prosecution whatsoever, the said Supreme Court of Judicature shall have full and absolute Power and Authority to deny, and they are hereby authorized and commanded to deny, the Appeal of any Party, convicted and pretending to be aggrieved.
lxx. And We do hereby reserve to Ourselves, Our Heirs and Successors, in Our or their Privy Council, full Power and Authority, upon the humble Petition of any Person or Persons aggrieved by any interlocutory Sentence or Determination having the effect of a definitive Sentence or by any definitive Sentence, of the said Supreme Court of Judicature, to refuse or admit his, her, or their Appeal therefrom, upon such Terms, and under such Limitations, Restrictions, and Regulations as We or they shall think fit, and to reform, correct or vary such Sentence or Determination as to Us or them shall seem meet; and We do further direct and ordain, that the said Supreme Court of Judicature shall in such Cases of Appeal, conform to or execute, or cause to be executed, such Judgments and Orders as We shall think fit to make in the Premises.
lxxi. And it is Our further Will and Pleasure, and We do hereby limit and declare, That the Person or Persons of Our Governor, or in his Absence from the said Island, of Our Lieutenant Governor of the said Settlements in the Island of Ceylon, or of the Chief Justice, or Puisne Justice of the said Supreme Court of Judicature in the Island of Ceylon, and within Twelve Months after any such Governor, Lieutenant Governor, Chief Justice or Puisne Justice shall have resigned or vacated any such Office as aforesaid, shall not, nor shall any of them be liable to be arrested or imprisoned upon any Action, Suit or judicial Proceeding whatsoever ; nor shall the said Supreme Court of Judicature in the Island of Ceylon, be competent to hear, try and determine any Criminal Prosecution against the said Governor, or the said Lieutenant Governor so acting for the Time being, or during such Period of Twelve Months as aforesaid, for any Offence which the said Governor or Lieutenant Governor shall or may be charged with, any Thing herein-before contained to the contrary notwithstanding ; nor shall the said Court have or exercise any Jurisdiction in any Matter concerning the Revenue, under the Management of the said Governor, except in Manner and Form herein-before in that Behalf provided ; nor concerning any Act done in the Collection of such Revenue, according to the Usage and Practice of the Country, or the Regulations of Our said Governor.
lxxii. And We do further limit and declare, That no Action for Wrong or Injury shall lie against any Person whatever exercising a Judicial Office in any Provincial Court, for any Order, Decree, or Sentence of such Court, or against any Person for any Act done by, or in virtue of any Order of any such Court.
lxxiii. And it is Our further Will and Pleasure, and We do hereby direct, ordain, and appoint, That the said Chief Justice and Puisne Justice forthwith after the Arrival of this Our Charter at the said Island of Ceylon, if they shall then be there, shall proceed to a proper Court House; to be appointed by Our Governor, or in his Absence from the said Island, Our Lieutenant Governor of the said Settlements in the said Island for the Time being for that Purpose, in; at, or near the Town, and within the aforesaid District of Colombo, in the said Island; and the said Chief Justice, if present, shall then and there take an Oath in the most solemn Manner; that he will, to the best of his Knowledge, Skill, and Judgment, duly and justly, execute the said Office of Chief Justice of the said Supreme Court of Judicature in the Island of Ceylon, and impartially administer Justice in every cause, Matter, or Thing which shall come before him; and shall also take the Oath of Allegiance and Supremacy, and make and subscribe the Declaration against Transubstantiation, in such Manner and Form, as the same are by Law appointed to be taken or made in Great Britain ; of which Oaths a Record shall be forthwith made, and We do hereby authorize the said Puisne Justice, if present, to administer the said Oaths and Declarations, and make such Records thereof accordingly ; And the said Puisne Justice, if present, shall take the like Oaths, and make and subscribe the like Declarations, only changing what ought to be changed for that Purpose, before the said Chief Justice, if present ; of which Oaths also a Record shall be forthwith made.
And We do hereby authorize the said Chief Justice to administer the said Oaths and Declarations, and record the same accordingly.
lxxiv. Provided always, That if the said Chief Justice alone, or the said Puisne Justice alone, and before the Arrival of the other of them, shall happen to arrive at the said Presidency of the said Island, or in the Event of the Death of either of them, the said Chief Justice and Puisne Justice, before the said Oaths and Declarations shall have been respectively taken and subscribed by both or either of them, such Chief Justice or Puisne Justice shall, as soon as conveniently may be, proceed to the Government House of the said Presidency, and take and, subscribe the said Oaths and Declarations: And we do hereby authorize the Governor, or in his Absence from the said Island, the Lieutenant Governor of the said Settlements in the said Island, to administer the said Oaths and Declarations accordingly, of which Oaths and Declarations so administered, taken and subscribed, a Suggestion shall be made on the Records of the said Supreme Court of Judicature.
lxxv. And We do hereby further ordain and establish, That all and every succeeding Chief Justice and Puisne Justice shall, before he or they shall be capable of exercising the said Office or Offices respectively, take in Manner herein before ordained, and according to the Circumstances of the Arrival of such Chief Justice or Puisne Justice, the like Oaths and subscribe the like Declarations, only changing what ought to be changed for that Purpose, whereof such Record, or such Suggestion on the Records of the Court, as herein-before respectively are directed, shall from Time to Time be made: And after the said Chief Justice or the said Puisne Justice, or whichsoever of them shall have arrived as aforesaid, shall, in Manner and Form herein-before respectively provided, have taken the said Oaths, and subscribed the like Declarations, the said Supreme Court of Judicature in the Island of Ceylon shall be proclaimed and published in due Manner, and proceed forthwith to the Execution of the several Powers and Authorities hereby vested in it.
lxxvi. And it is Our further Will and Pleasure, and We hereby grant and declare that from and immediately after the publishing and proclaiming of the said Supreme Court of Judicature in the Island of Ceylon, the Powers and Authorities granted to, or vested in, the Court styled The Civil Court, at the said Presidency, and the Powers and Authorities vested in the Court styled The Supreme Court of Criminal Jurisdiction, shall cease and determine, and be no longer exercised by the said Courts, but the same shall and may be exercised by the said Supreme Court of Judicature in the Island of Ceylon in Manner herein directed.
lxxvii. Provided always, That no Sentence, Decree or Decretal Order, or other Order, Rule, or Act of the said Two several Courts, styled respectively The Civil Court, or the Supreme Court of Criminal Jurisdiction, legally pronounced, given, had, or done, before such Publication or Proclamation as aforesaid of the said Supreme Court of Judicature hereby established, shall be thereby avoided, but shall remain in as full force and virtue as if these presents had not been made; nor shall any Action, Suit, Cause, or Proceeding depending in the said Civil Court, or any Prosecution or Criminal Proceeding depending in the said Supreme Court of Criminal Jurisdiction, be abated, discontinued, or annulled, but the same shall be transferred in their present Condition respectively to, and subsist and depend in the said Supreme Court of Judicature in the Island of Ceylon, according to the several Jurisdiction hereby given to such Court, severally and respectively, to all Intents and Purposes, as if they had been respectively commenced, brought, presented, or recorded in the said Supreme Court of Judicature hereby established ; and We do hereby authorize and empower the said Supreme Court of Judicature to proceed accordingly in all Actions, Suits, Causes, Prosecutions, and Proceedings Civil or Criminal, to Sentence and Execution, and to make such Rules and Orders respecting the same, and also respecting any Sum or Sums of Money belonging to the Suitors of the said Civil Court, or any Fine or Fines imposed by the said Supreme Court of Criminal Jurisdiction, as the said Civil Court or the said Supreme Court of Criminal Jurisdiction, respectively might have made, or as the said Supreme Court of Judicature hereby established is hereby empowered to make in Civil Causes, Suits, or Proceedings, or in Criminal Prosecutions or Proceedings respectively commenced before the said Court hereby established ; for which Purpose it is Our further Will ad Pleasure, that all the Records, Muniments, and Proceedings whatever, of or belonging to the said Civil Court, or the said Supreme Court of Criminal Jurisdiction, or which ought to be deposited with either of the said Courts, shall be delivered and deposited and preserved amongst the Records of the said Supreme Court of Judicature in the Island of Ceylon hereby established.
lxxviii. And We do hereby authorize and empower the said Supreme Court of Judicature, respect being had to the Seasons of the Year and the Convenience of the Suitors, to settle and appoint proper Terms and Sessions for the Exercise of the Civil Jurisdiction of the said Supreme Court, and respect also being had to the Seasons of the Year, and the Emergencies of the Occasion (and in this Behalf, by and with the Knowledge and Concurrence of Our Governor, or in his Absence Our Lieutenant Governor of the said Settlements for the Time being) proper Periods of Circuit for the Exercise of the Criminal Jurisdiction of the said Supreme Court, and to change and vary such Appointments as Occasion shall require and to them shall seem most expedient.
lxxix. Provided nevertheless, That the Supreme Court shall, and is hereby required in each Year to all at the least Four Sessions in its Criminal Jurisdiction, within and for the Town, Fort, and District of Colombo, for the Trial of Offenders, the Delivery of the Goal, and the Ends of Public Justice.
lxxx. And We do hereby authorize and empower the said Supreme Court of Judicature in the Island of Ceylon, to exercise, in all Matters of Criminal Jurisdiction, a general Superintendence and Control over all and every the Advocates, Fiscal, Justices of the Peace, Fiscals, and Peace Officers, appointed or to be appointed within the said Settlements in the Island of Ceylon, and the Territories and Dependencies thereof, and to preserve such Advocates Fiscal, Justices of the Peace, Fiscals, and Peace Officers in the Performance, and within the Limits, of their lawful Authority; and We do hereby direct, enjoin, and declare that all such Advocates, Fiscal, Justices of the Peace, Fiscals and Peace Officers, shall, in the Exercise of their Functions respectively, be subject to the Order and Control of the said Supreme Court of Judicature, in such sort, and as nearly as Circumstances will admit, in such Manner and Form as the Inferior Magistrates of an in that Part of Great Britain called England are by Law subject to the Order and Control of Our Court of King’s Bench; to which End the said Supreme Court of Judicature in the Island of Ceylon is hereby empowered and authorized to decree and issue a Mandate or Mandates in the Nature of a Writ of Mandamus, Certiorani, Procedendo or Error, to be prepared in Manner above mentioned, and directed to such Advocates and Fiscal, Justices of the Peace, Fiscals and Peace Officers, as the Case may require ; and to correct and punish any Contempt thereof, or willful Disobedience thereunto by Fine and Imprisonment.
lxxxi. And We do hereby further will, direct, and ordain, That the said Supreme Court of Judicature hereby established, shall frame such Process, and make such Rules and Orders for the Execution of the same, in all Suits Civil and Criminal, to be commenced, sued, or prosecuted within their Jurisdiction, as shall be necessary for the due Execution of all or any of the Powers hereby committed thereto with an especial Attention to the Religion, Manners, and Usages of the native Inhabitants living within its Jurisdiction, and accommodating the same to their Religion, Manners, and Usages, and to the Circumstances of the Country, so far as the same can consist with the due Execution of the Law, and the Attainment of substantial Justice.
lxxxii. Provided always, and We do hereby further ordain and direct, That all Forms of Process, and Rules and Orders for the Execution thereof, which shall be framed by the said Court, shall be transmitted from Time to Time, as soon as conveniently may be, to One of Our principal Secretaries of State for Foreign Affairs, to be laid before Us, Our Heirs and Successes, for Our or their Royal Approbation, Correction, or Refusal; and We ordain and direct that such Process shall be used, and such Rules shall be observed. until the same shall be repealed or varied, and in the last Case, with such variation as shall be made therein.
lxxxiii. And it is Our further Will and Pleasure, and We do hereby direct, ordain, and appoint, That if at any Time the Seat of Government of Our said Settlements and Territories in the said Island of Ceylon, shall have been, or shall be removed from the said Town and Fort of Colombo, to, and permanently fixed at; any other Town or Place within the said Island of Ceylon, then and in such Case (provided Our Governor, or in his Absence from the said Island, Our Lieutenant Governor of the said Settlements, shall deem such Removal expedient, and shall signify such his Judgment under his Hand and Seal, to Our Chief Justice of Our said Supreme Court), Our said Supreme Court of Judicature shall be, and is hereby directed to be transferred to such Town or Place; and all the Provisions in these Presents contained relating to the Establishment and Jurisdiction of the said Supreme Court, at and in the said the Town, Fort, and District of Colombo, shall be deemed and taken to be applicable, and shall be applied to such Town and Place, and such District surrounding the same, as Our Governor, or in his Absence from the said Island, Our Lieutenant Governor of the said Settlements and Territories for the Time being, shall in that Behalf direct and appoint.
lxxxiv. And for the Purpose of preventing any eventual Failure or Justice throughout the said Settlements in the Island of Ceylon, it is Our further Will and Pleasure, and We do hereby grant, ordain, and appoint, That whenever the Office of the said Chief Justice shall become vacant, the Puisne Justice shall Execute the same provisionally, until the Appointment by Us, Our Heirs and Successes, of some Person to the said Office shall take effect and the Governor of the said Settlements in the Island of Ceylon, shall, and he is hereby authorized and commanded by Commissioned under his Hand and Seal, to appoint some Person learned in the Laws, to hold and exercise the Office of Puisne Justice, provisionally, during such Vacancy of the Office of Chief Justice; and so in like Manner, if the Office of Puisne Justice shall become vacant, Our said Governor shall, and he is hereby authorized to appoint in like Manner, and, under the same Limitations, some Person to execute provisionally, the said Office of Puisne Justice, and the Person thus appointed, shall hold and exercised such Office of Puisne Justice of the said Supreme Court of Judicature in the Island of Ceylon, in like Manner to all Intents and Purposes, as is herein-before provided.
lxxxv. And whereas, in and by Our said First in Part recited Commission to Our said Governor of the said Settlements in the Island of Ceylon; and of the herein-before in Part recited Proclamation, published by Our said Governor, there were and are respectively established, Two several Courts of Appeal, styled respectively, The greater Court of Appeal, and The lesser Court of Appeal, and held before such Persons, and with such Jurisdictions, Powers, and Authorities as are in and by the said in Part recited Commission and Proclamation, respectively ordained.
And whereas, it appears to Us expedient. That the appellate Jurisdiction from the Provincial Courts, established within the said Settlements, should be exercised by and before One Tribunal only .
lxxxvi. Now know ye, That We, upon full Consideration of the Premises, and of Our especial Grace, certain Knowledge, and more Motion, have thought fit to grant, direct, ordain and appoint, and by these Presents We do accordingly for Us, Our Heirs and Successors, grant, direct, ordain and appoint, that there shall be within the said Settlements of the Island of Ceylon, and the Territories and Dependencies thereof, during Our Pleasure, and until such Time as We shall think fit otherwise to provide for the Administration of Justice therein, a Court of Record, which shall be styled The High Court of Appeal in the Island of Ceylon and which shall be a Court of Civil Jurisdiction for the hearing and determining Appeals from all or any the Courts of Justice established, or which may be established, within the said Settlements and Territories in the said Island of Ceylon, and the Territories and Dependencies, save and except Our said Supreme Court of Judicature in the said Island, and shall consist of, and be holden by and before Our Governor, or in his Absence, from the said Island, by and before Our Lieutenant Governor of Our said Settlements for the Time being, Our Chief Justice of Our said Supreme Court of Judicature for the Time being, Our Puisne Justice of Our said Supreme Court for the Time being, and the Secretary of Government for the Time being, or any Two of Them, of whom We will, that in all Appeals to the said High Court of Appeal in the Island of Ceylon, wherein the Sum or Value appealed for exceeds the Sum of Two hundred Pounds of lawful Money of Great Britain, or Two Thousand Rix Dollars or lawful Money of the Currency of Ceylon, Our said Chief Justice shall be one, and that in all other Appeals Our said Puisne Justice shall be One.
lxxxvii. Provided always, That in the Event of the Death, Illness, or Absence from the said Island of Ceylon, of Our said Chief Justice, or of Our said Puisne Justice, the remain ing Judge shall be present in all Cases of Appeal to the said Court: And provided also, That in the Event of the Death of both, Our said Chief Justice, and Our said Puisne Justice, or the Absence of both of them from the said Island, Our said Governor, and the said Secretary of Government, shall suggest such Deaths or Absence as aforesaid on the Acts of the said Court, and shall proceed to act as constituting the said Court of Appeal: And We do hereby further direct and ordain, That the said High Court of Appeal in the Island of Ceylon, shall sit, as Occasion shall require, in or near the said Town, and within the District of Colombo, or wheresoever the Seat of Government of the said Island of Ceylon shall be permanently fixed, for the Purpose of hearing and determining such Appeals.
lxxxviii. Provided nevertheless, That in all such Appeals, the Sum or Value appealed for do exceed the Sum of Thirty Pounds of lawful Money of Great Britain, or Three Hundred Rix Dollars or lawful Money of the Currency of Ceylon, and that Security be first duly given by the Appellant to answer such Charges as shall be awarded, in case the former Sentence be affirmed.
lxxxix. And We do farther grant, ordain, and appoint, that the said High Court of Appeal in the Island of Ceylon, shall have and use a Seal, bearing a Device or Impression of Our Royal Arms, with an Exergue or Label surrounding the same, with this Inscription, The Seal of the Court of Appeal in Ceylon; which Seal shall be delivered to, and kept in the Custody of, Our said Governor, or in his Absence from the said Island, of the Lieutenant Governor of Our said Settlements for the Time being.
xc. And We do further direct, ordain, and appoint, that the said High Court of Appeal in the Island of Ceylon, shall have full Power and Authority, not only to confirm or reverse in Whole or in Part, all and every the Sentences and Decrees, in all or any the Cause or Causes that come before them on Appeal, but that if they think it expedient the said Court may remand any such Causes so brought before them by Appeal, to the Courts below respectively, where such Sentences or Decrees have or shall have been respectively passed, with such Direction or Directions as they may think proper to award for the further or fuller Investigation of the Merits of such Causes respectively, or of any particular Matter of Enquiry and Contest in such Cause, or that the said Court, if they shall deem it more conducive to justice, may retain the Suit before themselves, and order, direct, and receive such additional Proof therein as may enable them to decide the same according to Justice and Right.
xci. And it is Our further Will and Pleasure, and We do further direct, ordain, and appoint, That if any Person or Persons shall find him, her, or themselves aggrieved by any Interlocutory Order, Rule, Decree, or Sentence having the Effect of a Definitive Sentence, or any Definitive Sentence of the said Court, styled The High Court of Appeal in the Island of Ceylon, it shall be lawful for him, her, or them, to Appeal to Us, Our Heirs and Successors in Our or their Privy Council, in Causes of the like Amount in Value, and in such Manner, and under and subject to such Regulations, Orders and Reservations, as have been herein-before directed in Cases of Appeal from Our said Supreme Court of Judicature.
xcii. And it is Our further Will and Pleasure, That no Proceeding whatsoever depending in the Court styled The Greater Court of Appeal, or in the Court styled The lesser Court of Appeal, be Abated or discontinued by these Presents, but every such Proceeding shall be transferred in its then present Condition respectively to, and subsist and depend in the said High Court of Appeal to all Intents and Purposes whatsoever; and We do hereby authorize and empower the said High Court of Appeal in the Island of Ceylon, to proceed accordingly therewith, and to do Right and Justice therein; for which Purpose, it is Our further Will and Pleasure, That all the Acts, Muniments, and Proceedings whatsoever, of or belonging to the said Courts, severally styled The Greater Court of Appeal, and The lesser Court of Appeal, shall be delivered over in, and deposited and preserved among the Acts and Records of, the said High Court of Appeal, in the same Manner, and to the same Intent, and with the same Effects as are herein-before directed with regard to the Acts, Muniments, and Proceedings of the Civil Court of Colombo, and of the Supreme Court of Criminal Jurisdiction, and the Delivery thereof to the Supreme Court of Judicature hereby established.
xciii. And We do hereby strictly charge and command all Our Governors, Lieutenant Governors, Magistrates, Officers and Ministers, Civil and Military, and all Our faithful and liege Subjects whatsoever, in and throughout the said Settlements in the said Island of Ceylon, with the Territories and Dependencies thereof, That in the Execution of the several Powers, Jurisdictions, and Authorities hereby created and made, or modified, revised and enforced, they be aiding and assisting, and obedient in all Things, as they will answer the contrary at their Peril.
xciv. Provided always, That nothing in these Presents contained, or any Act which shall be done under the Authority thereof, shall extend or be deemed or construed to extend to prevent Us, Our Heirs and Successors, from making such farther or other Provision for the Administration of Justice throughout the said Settlements and Territories in the Island of Ceylon, with their Dependencies, at Our and their Will and Pleasure, and as Circumstances may require; We, meaning and intending fully and absolutely, and to all Intents and Purposes whatsoever, to reserve to Ourselves, Our Heirs and Successors, such and the same Rights and Powers in and over the said Settlements, Territories, and Dependencies, and every Part thereof, and especially touching the Administration of Justice therein, and all other Matters and Things in and by these Presents provided for; as if these Presents had not been made, any Thing in these Presents contained, or any Law, Custom, Usage, Matter, or Thing whatsoever to contrary in any wise notwithstanding.
WILMOT
The Ceylon Law Recorder Vol.V December 1923 Part VI
THE CEYLON LAW RECORDER
The Hoff Van Justite of the Dutch times was held in the room in which the Legislative Council now sits and criminals were lashed or hanged in the parade ground over the road now known as the Gordon Gardens. An Execution was a solemn affair in those days. The scaffold was draped in black with companies of soldiers surrounding it, in presence of the Judges of the Court who had to sign a certificate, which had to be duly enrolled, of the prisoner having undergone the death sentence. The Supreme Court established by the Charter of 1801 continued its sittings in the same old chamber and its punishment was inflicted in the same old parade ground. The Military, however, claimed the grounds as theirs for their exclusive use.
Somewhere in 1804 after a prisoner had been subjected to corporal punishment on this Parade Ground the Town Major Captain Alexander Barry wrote to the Fiscal, Frederick, Baron Mylius, the following letter:-
MY DEAR BARON,
I do not know if I am correct in reporting it to you, but the Commandant wishes it to be understood that no civil prisoner is to be flogged on the Garrison Parade against which practice an order has, I believe, long been issued.
Believe me,
My dear Baron,
Very sincerely yours,
A BARRY,
Town Major.
The Fiscal was informed by the Town Major that if any attempt was made to inflict any punishment on the Parade Ground the Military authorities would prevent it. The Court thereupon issued a summons to the Town Major to appear before it and “answer for his conduct.” Captain Barry appeared and deposed that he had acted under the orders of the commandant, Colonel Charles Baillie, whose direction to the sentries was that the gates of the Parade should be locked, and that no person except a Military man should be allowed to go on that parade. Colonel Baillie was then summoned to appear forthwith “to answer to the matter stated against him and to be dealt with according to law.” Colonel Baillie appeared and stated that the ground was given by the Governor to General Macdowall for the purpose of Military parade, and orders were given that no person but the Military should be allowed access to it and that he closed the gates to prevent punishment decreed by the Supreme Court being inflicted there and he would carry out the orders of his superior officers. The Supreme Court directed Colonel Baillie to withdraw the order and on his refusing to do so, he was ordered to enter into recognizance to keep the peace and be of good behaviour, himself in Rds., 50,000 and his two sureties each in Rs. 20,000 for six months, and he was given time till the following morning to produce his securities. On the following morning, however, Governor North wrote to the Chief Justice that he had cancelled the order. The Military resented the interference of the Governor, and General Wemyss the Commander of the Forces ordered the main gate (part of which near the Fort Police Station still stands) to be closed and the drawbridge raised. The Chief Justice who lived at Colpetty drove in by the Galle Face Gate and took his seat on the Bench, but the Puisne Judge, Justice Lushington, who lived at San Sebastian was held up. The Chief Justice hearing of this directed the Registrar to proceed to Colonel Baillie’s house and inquire of him whether any order was given to prevent any person from entering the Fort, and if so, by whom. Colonel Baillie was reported not to be found. The Registrar then proceeded to the Delft gate leading to the residence of the Governor, but was stopped by the sentry who informed him that he could not pass. The Governor meanwhile proceeded to the spot had the gate opened and took possession of the keys. Colonel Baillie duly appeared to the mandate from the Supreme Court and put in a letter received by him from General Wemyss and another from the Adjutant-General of the Forces under authority of which he acted. A mandate was then issued to General Wemyss to appear on the 29th of September to answer for his conduct and a subpoma was issued to the Adjutant-General. On the returnable day of the mandate Sir Alexander Johnstone then Advocate-Fiscal, delivered into Court a letter sent to him that day by the Governor stating that it was of the utmost importance that General Wemyss should remain at Headquarters during the then campaign and requested the Advocate-Fiscal to move the Court to defer his appearance till the 15th of October. The Court, however, made order commanding the General to appear on the 3rd of October. On the 1st of October the Advocate-General under instructions from the Governor moved for a Commission to take the affidavit of the General at Negombo as his presence at Colombo on the 3rd “would be detrimental to the services.” The Court disposed of the matter by curtly declaring “that the Advocate-Fiscal do take nothing by his motion.” On the 5th of October the Court met and General Wemyss the Commander of the Forces and Lieutenant-Governor of the Island appeared in Court to answer for his conduct. He was surrounded by the officers of the garrison and the grounds about the Court buildings and the parade ground were filled with officers and soldiers. The Chief Justice inquired of the General what was meant by so unusual an assemblage, adding that if it was intended to intimidate the Judges not all the guns of the garrison leveled at their Lordships would have that effect. The crier of the Court was directed to proclaim the order that no one was to remain in the Court premises with their swords or bayonets and the order was enforced even in the case of the General and his suite. They retired and came back without their sidearms.
The General admitted that the orders were given by him and he was thereupon ordered to enter into recognizance to keep the peace and be of good behaviour for one year and to appear to any libel that should be allowed against him and signed by the Advocate-Fiscal. The General vehemently protested against the order but the Chief Justice informed him that it would be the duty of the Court to enforce the order by charging the Fiscal upon a committal to take his body in custody until he should comply with the order requiring such recognizance which was fixed at Rds 100,000. The General in the end relented and complied with the order and entered into the recognizance. Presumably the Advocate-Fiscal did not view with favour the attitude of the General and presumably too the General was somewhat free with his tongue, and they swore terribly in those days, and the General alleged that he received a challenge from Alexander Johnstone to fight a duel with him. The General appealed to the Supreme Court and prayed that Jhonstone might be bound over in surety to keep the peace. The Court enquired into the matter found that no challenge was sent and there was no sufficient cause why the said. Alexander Johnstone should be bound by recognizance to keep the peace.
Thus ended the first phase of the great trek. The second phase involves a further battle of wits between the Supreme Court & the military supported if not encouraged by the Governor and requires more space than can be given in this communication.
The Chief Justice was Sir Codrington Edmund Carrington (1802 – 1806) the first Chief Justice. There is a fine portrait him in the Law Library from a picture in the South Kensingtom Museum, the gift of his granddaughter the Countess Martinengo Casaresco. The Puisne Judge – there was only one at the time – Edmund H. Lushington the first Puisne Judge (1802 – 1807) who subsequently became Chief Justice (1807 -1811). There is a fine portrait of him in the Law Library the gift of his son the late Sir Frank Lushington the famous Bow Street Magistrate. Sir (then Mr ) Alexander Johnstone was the Advocate-Fiscal. He was later Chief Justice (1811–1819). There is a portrait of him too in the Law Library.
Baron Mylius was a Lieutenant in Artillery Hussars and in the Wurtenburg regiment before he entered the Civil Service. He married a daughter of Cornelius Van Der Graaf, Governor of the Cape to whom he was A. D. C. She was a niece of Jacob Van Der Graaf sometime Governor of Ceylon. In addition to his duties as Fiscal he was “sitting Magistrate for the space between Galle Gate and the tamarind tree,” Registrar of Lands, Colombo, and “President of the Court of Justices to be held twice a month at Caltura.” At the date of his death (1817) he was Judge of the Provincial Court of Point Galle, Matara & c” as a tombstone in the Dutch Church at Matara records.
General Wemyss received the following year another shock. The Gazette of the 15th April, 1805 records that the official residence of the General was struck by lightning, the building damaged and the General himself and his son, his A.D.C. knocked over but they escaped unhurt. VETUS
THE CEYLON LAW RECORDER
THE RIGHT OF REPLY IN CRIMINAL CASES.
The recent case of “The King v .D.M.D. Stephen” created a good deal of public interest and a point of special interest to the practitioner is the one on procedure as regards the right of reply. The accused in cross-examination of a prosecution witness produced a document to contradict a statement of the witness and this afforded an opportunity for the prosecuting counsel to have the last word although the accused did not give evidence on his behalf and did not call any witness to prove his defence.
The right was exercised apparently under sub-Section 2 of Section 237 of the Criminal Procedure Code.
This sub-section says “The prosecuting counsel shall subject to the provisions of sub-section (2) of section 296, be entitled to reply on any evidence given by or on behalf of the accused”. Sub-section 2 of Section 296 says that when the evidence for the defence consists only of the evidence of the person or persons charged the prosecution shall have no right of reply. It has also been held (22 N.L.R. 468) that when the evidence for the defence is only that of the accused the proper time for the Town Council to sum up is after such evidence but before the reply of his own counsel.
The question is whether the document produced in cross-examination of a prosecution witness, before the prosecution is closed and without any evidence being “given” by or on behalf of the accused, entitles the prosecution to a right of reply. Under Section 234 sub-Section 3 when the case for the prosecution is closed if the accused announces his intention not to adduce evidence prosecuting counsel has the right to address the jury a second time. That being so will it not be fairer to interpret Section 237, Sub-section 2 to contemplate evidence given by or on behalf of the accused after the prosecution is closed? Section 212 of the Code gives the procedure in the District Court, and says that if any evidence “is adduced on behalf of the accused” not “given” by or on behalf of the accused) the prosecuting counsel shall, subject to the provisions of Sub-section 2 of Section 296, be entitled to reply & c. Here the prosecuting counsel’s right of reply seems to be less restricted than in Section 237, Sub-section 2. But even here the section comes soon after the one that deals with what the accused or his pleader does when he calls a defence. The intention of the legislators as regards the relation of one section to the other can also be seen from the position of the respective sections, and it has also been held in a case reported in the 2nd volume of the Criminal Appeal Reports that the rights of reply given to the prosecuting counsel by Section 212 of the Criminal Procedure Code depends on the evidence for the defence given at the time indicated in Section 211.
The procedure on this point in a summary trial before the Police Court is just the opposite since Section 189, Sub-section 3 lays down the rule that the complainant or his pleader shall not be entitled to make any observation in reply upon the evidence given by or on behalf of the accused. It is difficult to understand the reason for this difference. The graver the offence with which an accused is charged the greater should be the facilities for the accused to prove his innocence. But after the ruling in the recent case it seems to appear otherwise.
N. DE ALWIS
Balapitiya.
* The Ceylon Law Recorder Vol.V December 1923 Part VI
THE CEYLON LAW RECORDER.
Vol. V January, 1924. Part VII
THE TRECK TO HULTSDORP.
(Continued)
The triumph of the Supreme Court was short lived. Two days after the closing of the Fort Gates the Governor informed the Judges that he intended to remove the Court House from the Fort to its present site, which was formerly the residence of Mr. Andrew, the Collector, and for a time of the Governor himself. In a Letter of forced courtesy the Governor wrote: “In addition to the various inconveniences which must attend your Lordship’s permanent residence in this crowded garrison, I have the honour to inform you that I expect in a very short time the arrival of a Regiment of Negroes from the West Indies whose habits of life are so little known and probably so little analogous to the natives of this Island that it is equally desirable for the department over which you so worthily preside as for their own discipline that they should be quartered within the Fort.” Chief Justice Carrington and Puisne Justice Lushinghton replied at length protesting against the removal. “That the Fort of Colombo,” they wrote, “is not merely a Garrison Fortress, but the principal town of our settlements in Ceylon, the centre of the British population of commerce and of business is obvious, the public wharf, the custom house, the offices of government are situated there and public convenience should appear therefore to suggest the propriety of making that the station of the Supreme Court.”
But there is another reason equally cogent with public convenience – the necessity of public control. In this isolated spot, at this distance from Great Britain, in a society of which the military must form a very large proportion, the presence of a Court of Law appointed by the Sovereign is the best and most constitutional protection that can be afforded to the inhabitants.
Its active powers are seen and acknowledged and even the tacit influence of its presence is of considerable service in checking the turbulence of passion and preventing the commission of crimes.”
The Judges then reiterated the facts narrated in our former communication and gave it as their opinion that the reason for the proposed removal, the Governor’s decision was based on the erroneous belief that there was a conflict of the civil jurisdiction (of the Supreme Court) with the jurisdictions, opinions and prejudices of the military.” They complained that in consequence of the illegal command by the highest military authorities without any communication with the Governor “the ordinary course of civil communication of commerce of Justice and of Government were impeded and the all course of justice was suspended. Our process must run through the Fort and it must be obeyed”. To this the Governor sent a courteous reply making it clear, however that the change must take place. “I’m equally sensible with your Lordships,” he wrote “That the military powers must be kept within bounce. All that has lately taken place here tends to prove that no attempt to exceed it can past, and … as the whole garrison had sued their commandant under recognizance and will shortly see the Commander of the Forces at your bar I certainly cannot suppose they will entertain higher ideas than they hitherto have of the lawful extend of military authority.”
But behind the soft words and courteous language of the Governor it was not difficult to discover a subtle display or of resentment of the at the action of the judges. With reference to the judicial inquiry pending before them, he wrote, “I can only assure your Lordships that I should not have resented it so publicly or so instantaneously as I did, had I not conceived that the identical disrespect to your Lordships was involved in the direct contempt of my authority, and that by the same measure I asserted and restored the dignity of both.
Your Lordships have done otherwise and the conduct of the Lieut.-Governor will be brought under your immediate examination.
That you have proceeded and will proceed against so high an officer with all due courtesy and mildness I have no doubt.
Her Majesty has been pleased to entrust me with the preservation of the general safety and tranquility of the settlements and I conceived myself bound to exercise my own powers firmly and conscientiously in discharge of that primary duty.
I have purchased for your acceptance the spacious and airy house of Mr. Bertolacci with a sufficient demesne around it and am perfectly convinced that your removal to it will neither be derogatory from your dignity nor in any manner inconvenient to the people whose rights are entrusted to your care.”
These were soft words but their purport was quiet clear. That the Judges replied with equally forced courtesy cannot be doubted but so far no record of their reply has been discovered. Perhaps they may yet be found in some neglected shelf of the record office.
Many years later Sir John Bonser wanted the Court removed to the Fort, but without entering into the question whether it was desirable or not, it was pointed out that even if funds were available there was no room there for the necessary buildings, and nothing was heard on the subject. There was also the somewhat absurd proposal by a later Chief Justice to have the appeal Court at Kandy or Nuwara-Eliya, but nobody entertained the idea seriously.
The Supreme Court of Sri Lanka
Court Complex – Galle Fort
A Court House in the Kandyan Province in the Late 1800s
The Royal Court of King Sri Wickrama Rajasinghe in the 19th Century.
The Supreme Court of Sri Lanka in 1816