THE DEPENDENCY QUESTION


CHAPTER THREE

THE HISTORICAL PRELUDE

In his "Notes on the History of the Cayman Islands", George Hirst dismisses the remarks of Lord Sligo, Governor of Jamaica, in his August, 1834 correspondence with the Colonial Secretary, quoted in Ch.2 above, about the constitutionally anomalous position of the Caymanas and its lack of "laws of any sort", as appearing to be unnecessary3.1.

Hirst did not take into account the reality that Lord Sligo would not have recognised the validity of laws that had been made in the Caymanas by previous Chief Magistrates or "Governors" there; nor would Sligo have recognised the laws that had just been passed by the new legislative body that began at the close of 1831 even if, when he wrote the letter, he had known about them. Moreover, Lord Sligo would not necessarily have "overlooked"3.2 the seventeenth century instructions to Lord Windsor, because an inspection of them reveals them to be far indeed from "defining"3.3 the Caymanas as a Dependency of Jamaica.

And forasmuch as there are several little islands adjacent to the said island of Jamaica, and belonging to the territories thereof, as the Caimanes island, Salt Island, Goat Island, Pigeon Island, and divers others, although they be not particularly nominated in the Commission granted you for the Government of our said island of Jamaica, which, by the planting and raising fortifications upon them, may be of great concern and advantage towards the security and well settling of our island of Jamaica: these are therefore to authorize you to pass and consign the lands belonging to these other isles, or any of them, and any part or parts thereof to any person or persons by grant under our public seal of Jamaica. ... And for so doing you have hereby as full power, to all intents and purposes, as if the said islands were particularly by name expressed to be continued under your Government, in the Commission and letters patent given you by us for the Government of Jamaica aforesaid, under our Great seal of England.3.4

The intention of this instruction in relation to the small islands named was merely to authorise the Governor's exercise of power within them for the benefit of the settlement of Jamaica: he was thus justified in exercising the same authority upon them as if they had been expressly mentioned in his commission to govern Jamaica. The source of the Governor's authority upon them was in these and any other such instructions, which would not have been necessary if the islands had themselves already been legal dependencies of Jamaica.

The instruction refers to all the "divers" islands (not, evidently, just the Cayman islands) as being

"adjacent to the said island of Jamaica, and belonging to the territories thereof".

The phrase was not: "adjacent and belonging to the said island of Jamaica", which would have been the obvious way of expressing what Hirst and others suppose was the meaning of it.

"Belonging to" does not necessarily denote possession, as with, for example, a chair belonging to a particular set of furniture. Just so in meaning is the reference elsewhere in the instructions to the lands belonging to these other isles. So the meaning is that these small islands belong with one another in a set, and this set is referred to as "the territories thereof [of Jamaica]". "The territories of Jamaica" would be approximately analogous to the modern conception of "the British Isles", which are not in every part actual possessions of Britain. (In other documents of the time Jamaica itself is referred to as being "in America", without implying any political connection between Jamaica and any of the settlements of mainland America.) There might possibly have been the allusion to a claim that the territories to which these islands belonged were as much English territory as Jamaica itself was, but it is more likely that "territories of Jamaica" would denote from the point of view of far-away England the geographic region of which the island of Jamaica was the focus of attention.

In any case, just as the Preamble to any Law is not itself a part of the Law's enactment, so this preamble to these early instructions would carry no power to enact what it might appear to assume, and more especially in the light of the definition achieved later, in the nineteenth century.

Elizabeth Davies shows moreover that the Spanish enactments that had been in force in Jamaica were not recognised after English acquisition.3.5 It would therefore have been impossible for the English to have found and recognised islands hundreds of miles from Jamaica (as the Cayman Islands are) as "belonging" to it by some previous Spanish enactment.3.6 That would be a condition for an English legislature to enact into being. The Instructions to Lord Windsor give an impression of a dependency relationship, but a closer examination shows that this relationship is not substantive. (This rather quirky "relationship" that dissolves into a mere impression as soon as any weight is placed upon it appears to be a feature of the history of the Cayman Islands for the next two hundred years.)

Contrary to the implications which Hirst repeatedly expresses3.7 there seems to be no record of an appointment by the seventeeth century Governors of Jamaica of any chief person to govern the resident population of the Islands, which was probably confined to the Lesser Islands. Grand Caymanas was possibly not known about by the earliest Governors. But the Governors found the Lesser Islands useful, particularly as a supply of turtle-meat to needy ships. It was very necessary that they should remain under English control for that reason and for other reasons of security. No doubt the Governor of the day merely looked benignly upon whatever form of governing the residents chose to practise, so long as they continued to recognize the authority over the territory with which he had been invested. The inhabitants seem therefore to have appointed a man from their own number who, in imitation of the practice in Jamaica, they called their "Governor". In 1669 while Sir Thomas Modyford was Governor of Jamaica the local "Governor", Captain Ary, fought with an attacking band of Spanish, who were reported back to England by Modyford as having carried away some of the English fishermen at Caimanos, burnt the "Governor's" house and carried away all his goods, taking away various vessels and destroying all the fishing boats on the island of "Caimanos".3.8 "Governor", of all titles, would be altogether unlikely to have been conferred directly by an authority recognised as the Governor, and is clearly an imitative appellation. It confirms the reality that the English Governors of the time exercised no particular mandate over these islands for their own sake or good, but kept very much to the spirit of that part of the Windsor Instructions which viewed them as of strategic benefit to the island of Jamaica, viz "of great concern and advantage towards the security and well settling of our island of Jamaica".

The settlement of the islands did not in any case proceed successfully in accordance with the Windsor Instructions. It seems that unauthorised immigration from Jamaica to the "remote" islands very swiftly became a source of alarm to the English Governor, who found in this circumstance a threat to due authority and social order, and thereupon attempted in 1671 to induce the population there to return.

...whereas there are divers soldiers, planters, privateers, and other late inhabitants of this island now at Caimanos, Musphitos, Keys and other remote places, who made scruple of returning, either fearing his Majesty's displeasure for their past irregular actions, or doubting their being prosecuted by their creditors, the Governor sends forth to declare his Majesty's pardon and promise freedom from all arrests and debts to said creditors, &c., for the term of one year provided they return within eight months after the date hereof ...3.9

Hirst surmises that the main result of this instruction was the desertion of the Lesser Islands and the settlement of Grand Cayman. The "inducement" was perceived as a threat. Davies points out that if this was indeed the course of events, as seems likely, these early inhabitants cannot be regarded as having effected an authorised English settlement of the islands. If they all fled, then none of them laid claim to having been granted lands in the Lesser Islands under the public seal of Jamaica, as had been specified in the Windsor Instructions. Again, in departing for Grand Caymanas, rather than obeying the instructions of the current Governor Sir Thomas Lynch, they were attempting to reinforce their separation from the forces of law and order. Authorised settlement of the Caymanas was still in the future, and since the Cayman Islands were acquired by England by settlement rather than by conquest (their being uninhabited at the time of Jamaica's conquest), this acquisition was not actually effected in law until the date of authorised settlement. Up to this time (which Davies regards as most likely to be in 1734)3.10 they cannot be regarded as having received any part of the corpus of English law. This theoretical position does appear to correspond satisfactorily with what is known to history, and is also (if such were needed) a fourth reason why the preamble of the 1662 Windsor Instructions cannot have effected any legal definition of the position of the Caymanas.

It is from documents dating from 1734, however, that this seemingly incontestable position is on first examination thrown into some doubt. Hirst records3.11 that in 1734 the first patent of land ever granted by the Crown in the Island of Grand Cayman was acquired by Daniel Campbell, John Middleton and Mary Campbell. It is notable that the three thousand acre parcel is described as "being at the Grand Caymanas being part of the Territories in America belonging to and depending on this our Island". Evidently this document does refer to a presumption (rightly or wrongly held) that Grand Cayman at that time belonged to and depended on Jamaica. However it is equally notable that in all the subsequent land patents quoted by Hirst3.12 in detail, in not one of them is this phrase repeated. Grand Cayman is just referred to always as "the island of Grand Caymanas (or Caymanes)". The systematic omission of such a phrase used at first may well show that the point had been taken that its use was unjustified. One can reasonably speculate that it had originated in an attempt to "improve on" the phrasing of the Windsor Instructions.

Apparently adding to our difficulties at this point is the use of what was becoming the standard accolade for the Governor, namely, "Commander in Chief of his Majesty's Island of Jamaica and the Territories thereon depending in America." Of course, to omit a portion of such a resounding expression might be more than a legal draughtsman might care to handle, implying as it could have done a certain loss of dignity on the part of the Governor. In any case since such dependent territories were not defined in the expression, it would still be accurate even if there were none.3.13 It is notable that the King himself was still being referred to as (for example) "George the Second by the Grace of God of Great Britain, France and Ireland, King and of Jamaica Lord Defender of the Faith, etc.",3.14 long after the abandonment of France to the French! We may therefore strongly doubt that a corresponding expression describing the Governor would securely denote historical or legal reality, however impressive it continued to be for over a century.

The terms of the land grants show that the Governor, as the King's representative, was authorised to exert effective control. The authority for the Governor to confer such grants was regarded as within the terms of royal Proclamation made in the reign of King Charles II. No doubt the Windsor Instructions would have been cited in support of this. Any presumed legal relationship between Jamaica and the Cayman Islands rested entirely upon the same source of authority, and the same position continued throughout the regimes of the eighteenth century "Governors", William Cartwright and William Bodden. It is interesting that the appellation "Governor" was continued locally, in spite of the fact that their appointment by the Governor was to be Stipendiary Magistrate in Cartwright's case, or Chief Magistrate or perhaps Custos in Bodden's. Indeed in Little Cayman, a similar practice (of referring in this case to the District Officer as "Governor") has been adopted and is continued to the present day, though in Grand Cayman the practice appears to have been discontinued during William Bodden's magistracy. These early "Governors" were expected to make regulations or laws, and seem to have done so with enthusiasm at times and without reference to any external source of authority such as the Governor. This notable circumstance should be borne in mind in considering the practices of the Legislature that began in December 1831.

Cayman was not at this period a Dependency of Jamaica, in the sense either of being subject to Jamaica's own legislation or of being included within British constitutional provisions for the government of Jamaica. Cayman was, however subject to the authority of the Governors of Jamaica, and that authority rested upon special provisions that were made for the security of Jamaica. In the eyes of many, therefore, it was justified to refer to the Caymanas as being a Dependency of Jamaica. Indeed some of the eighteenth and nineteenth century Chief Magistrates of Cayman tried to extract legal advantages for Cayman from its presumed dependency upon Jamaica. In this they were always frustrated, because the normal relationship existing between a principal territory and a dependency, whereby legislation in the one applied routinely to the other, did not exist in the case of Jamaica and the Caymanas; and finally in 1835, as has been seen, any dependency relationship between the Caymanas and Jamaica was specifically denied and foreclosed in the Jamaican House of Assembly, to the discomfiture of the British Authority.