THE DEPENDENCY QUESTION


CHAPTER TWO

THE DEFINING EVENTS OF THE NINETEENTH CENTURY


In 1982 the Cayman Islands celebrated "150 years of Parliamentary Government" with fair ceremony, to recognise something important happening around the turn of the year between 1831 and 1832. This important happening is generally considered to be an orderly and duly authorised evolution into the Cayman Islands of a representative form of Government. But in reality, the actions of the Cayman Magistrates in December 1831 and January 1832 arose from a sense of raw necessity, and were at the time considered by most authorities to be almost the opposite of orderly, or duly authorised.

That this was the state of affairs is made quite clear by reference to the correspondence a few years later between the Colonial Office and the Governor. For instance in the letter from Lord Sligo (the Governor) to the Rt. Hon. Thomas Spring Rice (the Colonial Secretary) dated August 12th 1834, the Governor writes: -

The very peculiar state of the Caymanas respecting which I have been up to this day in vain waiting for Specific instructions, which is in the anomalous position of being without laws, of any sort, without any form of government, without any person with any title to preeminence & which tho it willingly admits itself to be a dependency of Jamaica, is not so, by any Enactment, has given me some uneasiness.2.1

Such a statement is clearly not that of a Governor who contemplates a recognised and authorised Cayman Islands Government established by his predecessor merely two years and eight months beforehand; his "uneasiness" about "the very peculiar state of the Caymanas" precludes any possibility that a Government there had been properly installed. Soon afterwards in November 1834 he becomes able for the first time to inform the Colonial Secretary about the Cayman Magistrates' actions, nearly three whole years after they had taken their initiative.

I have the honor now to enclose Copies of the Local Laws which have been framed by the Magistrates and certain constituted Representatives in that Dependency, and which have only recently been forwarded to me by the Senior Magistrate.2.2

Along with the copies of the "Local Laws" is the very brief account that the Cayman Magistrates had provided him of what had occurred at the beginning.

Grand Cayman "Ss"

At a Meeting held at Saint James's on the 5th December 1831, It was resolved that Representatives should be appointed for the different districts throughout the Island for the purpose of forming Local Laws for its better Government. The Representatives were accordingly elected on the tenth of the same Month, and assembled at George's Town said Island, pursuant to Advertisement on the 31st December 1831, and the 2nd January 1832. The Magistrates also assembled but did not sit in the same Room with the Representatives, forming as it were, two Houses in imitation of the Council and Assembly of Jamaica, and no law framed or passed by the Representatives, deemed valid till it had received the Assent of the Magistrates.- The Names of the Magistrates and Representatives are as follows.

Magistrates
Representatives
John Drayton, Senior Magistrate Geo. W. Wood | Bodden Town
Robert S. Watler__________| James Hunter Wood | Bodden Town
Waide W. Bodden________ | James Coe Senr | Bodden Town
John S. Jackson__________ | William Eden Junr | Prospect
James Coe Jnr___________ | John Goodhew - S.W. Sound
Abraham O. Feurtado ____ | James Parsons Senr | George Town
Ebin John Parsons________ | Wm J. Bodden | George Town
*Nathaniel Glover_________| Thos L. Thompson | George Town

Samuel Parsons | West Bay

Wm Bodden Senr | West Bay


 *Wm Eden Junr Esq. is now a Magistrate in the room of N. Glover Esq. resigned.2.3


The 22 pages of Grand Cayman laws that were included in this communication were provided with an Index.

Index to the Laws 2.4

Magistrates & Representatives assembled to form Local Laws - their houses ............................1
An Act to prevent the retailing of Spiritous Liquors without a Licence .....................................3
Amendment to ditto ....................................................................................................................5
An Act to Regulate the times of holding the Courts ...................................................................6
An Act for levying a Tax ...........................................................................................................7
Cattle Law ..................................................................................................................................9
An Act to regulate the Cleaning of the Public Roads................................................................ 13
A Bill to regulate the attendance of Jurors .................................................................................17
Animal Tax ................................................................................................................................18
Observance of the Sabbath .........................................................................................................18
Weaker Spirits than proof 26 forfeited ........................................................................................20
Militia Dinner Bill, at the Annual Review.................................................................................. 21
An Act for laying a Duty on Transient Traders ..........................................................................22
An Act for the Regulation of the Island Militia ............................................................................2

These were all Acts considered to be passed in the time between December 31, 1831 and whenever the Magistrates provided the list to the Governor circa October 1834 following the first of his two visits to the Caymanas. (Whether or not it was an exhaustively complete list of the laws then in effect is a separate consideration.)

From that time on, the Governor referred to the Legislative body at "the Grand Caymanas" as being self-constituted. For instance in his letter dated December 13th 1834 he wrote:-

...finding from the Enquiries which I made what an anomalous position it was in, as to Law and Government I procured from them a copy of their Laws, and a precis of their self-constituted Legislative body. These I have had the honor already to send home to you, and trust that they will induce you to bring firm and just Measures as will place it under some legitimate constraint.2.5

Lord Sligo went on to say that he strongly felt these necessary Measures should emanate from the British Parliament. On this he was overruled by his superiors at the Colonial Office, but as we shall see, events came to prove his foresight.

In a letter that crossed Lord Sligo's, the Colonial Secretary, now Lord Aberdeen, referred to the actions in the Caymanas in far stronger language and explained his preference for a solution that would emanate from the legislature of Jamaica.

The Marquess of Sligo My Lord 27 Jan

I have received your Lordship's desp. dated the 16th of Nov. last No. 68. enclosing Copies of certain local laws promulgated by the Magistrates and Representatives of the Island of the Grand Caymanas.
It can scarcely be necessary for me to remark that H.M. Government cannot recognize the Authority of the Persons by whom these laws have been framed, or the validity of such Enactments. Several Gentlemen assuming to themselves the title of "Representatives", have undertaken to make laws binding upon their fellow subjects; obedience to which is to be enforced by Penalties of no light severity The Exaction of such Penalties, would, I apprehend, subject to Prosecution and civil Actions any Persons who might be employed for that purpose: and to Proceedings involving such Consequences, H.M. Government cannot make themselves Parties.
Independently of the preceding Considerations, I cannot but entertain a strong objection to multiplying the legislative Bodies of the Colonies which perhaps are already too numerous for the purposes of good government. The necessity of bringing the Settlers at the Grand Caymans within the reach of some system of law susceptible from time to time of improvement and application to their condition, will not of course admit of dispute: but that end might be much more readily and effectually answered, by admitting with the H. of Assembly2.6 an additional Member representing the dependency; or even by a declaratory Act of the legislature of Jamaica, extending to the Caymans the operation of the Statutes of the Colony2.7, except in so far as local circumstances might render them inapplicable. Without undertaking to explain at length the methods by which this end might be effected, I cannot doubt the practicability of accomplishing it, especially since there are not wanting recent Precedents in other Colonies, of Proceedings precisely analogous in Principle to that which I have suggested.
I have the honour to be
etc.2.8


The correspondence between the Governor and the Colonial Secretary (Lord Glenelg, who followed his predecessor Lord Aberdeen's thought exactly) during the first half of 1835 continued to display, on the one hand, their common mind that the Grand Cayman Assembly of Magistrates and Representatives did not have legitimate authority, and on the other, their difference over where the solution to the problem should be sought. It was at this time that difficulties were coming to light over the possibility of a fair, or even lawful trial in the Caymanas for two soldiers of the detachment of the West India Regiment stationed there2.9, and over the unlawfulness in Cayman of the apprenticeship of the former slaves.2.10 These were both matters closely related to the underlying constitutional anomaly, and on both Lord Sligo acted robustly and successfully. But the solution for the constitutional issue itself proved inaccessible, though not by his fault; for Lord Glenelg seems to have been insisting on an alternative proposal for solving it that was laid before his predecessor Mr. Lefevre in early 1834. Mr. Lefevre, however, had favoured passing an Act of the Imperial Parliament.2.11 If that had been accomplished in 1834, how different the course of Cayman's history would have been! In a letter accompanied by copies of petitions from the Cayman authorities to H.M., the House of Commons and the House of Lords, Sligo wrote concerning the Caymanas envisaging:-

...the Establishment of some kind of Government, which will be authorized, recognized, & supported by the British Government. The sooner its present self constituted Government is abolished, the better it will be for the Island.2.12

The Colonial Secretary, advised by his experts, considered that there was a highly relevant precedent in the solution of this kind of problem. Some years before, the small island of Anguilla, lacking in a Government of its own, had been brought under the rule of law by means of an Act passed in the Legislature of St. Christopher's, which admitted there a Member from Anguilla. Laws were then enacted by the St. Christopher's Legislature for the internal government of Anguilla. The apparent success of that exercise commended a similar form of solution to the present difficulty at the Caymanas, and this consideration prevailed over the Governor's apprehensions about the chances of the Jamaican House of Assembly accepting responsibility for the Caymanas, and indeed about the Caymanas being receptive to constraint from the Jamaicans.2.13

In August 1835, the Governor addressed the two Houses of the Jamaican Legislature proposing to them

...an Act for the Legislative Union of the Caymanas with Jamaica. ... The recent change in the relative positions towards each other of the two classes of His Majesty's subjects resident in the Caymanas and the absence of any legally constituted government, renders it expedient that those Islands hitherto considered as dependencies of this Colony, should be admitted to a share in its representative privileges and be governed by its law ...2.14

In referring to the "recent change in the relative positions ... of the two classes of His Majesty's subjects resident in the Caymanas", Lord Sligo must have been on slippery ground with the Jamaicans. The apprentices (formerly slaves) of the Caymanas had been given full freedom by his own recent proclamation there on the 2nd May.2.15 Lord Sligo no doubt sought by this reference to add weight to his argument that it was not only necessary, but urgent, to give the Caymanas a legitimate government. Without that, how could the freed former slave be compelled to fulfil his obligations to the community? (Lord Sligo was to be advised later by the Chief Magistrate in Cayman that the former slave-owner was in even more need of legitimate constraint, to prevent him from denying to the newly freed his land and other rights.2.16) The reference, however, must surely have acted as red rag to bull. Members of the Assembly were bitter, and chafed at the British initiatives that were bringing the old order of free man and slave to an end. Many felt that the Colony was being completely ruined by the ending of slavery. And now the British Governor had in the Caymanas brought to an abrupt end the last vestige of the old order, represented by the apprenticeship system, which they were clinging to in Jamaica. Even in Jamaica the Governor had embarked on a similar course with the apprentices of the Maroons.2.17 It is not surprising that they wanted nothing to do with the matter, and were quick to impress upon the Governor that if the British authorities had caused an unsatisfactory state of affairs in Cayman, then it was surely the British who bore the responsibility for doing something about it, and not them.

We do not perceive the "expediency of a legislative union of the Caymanas with Jamaica". It is no fault of ours that "the two classes of His Majesty's subjects resident there have been placed in their present relative position towards each other." Having always protested against external interference with our own legislation we are not disposed to interfere with that of others and must therefore leave those who have occasioned "the absence of a legally constituted government at the Caymanas" to organize the elements of society in that dependency of His Majesty ...2.18

A few days later, the "Jamaica Despatch and New Courant" newspaper was bringing to its readers unqualified support for the Assembly's position. Noted the Editor:

"How, when, or where were the Caymanas ever united to Jamaica? - Our Legislators may as well unite us to Cuba. - "

On the refusal of the Assembly to countenance the Governor's proposal the newspaper commented:

"In regard to the former [the bill for the legislative union of the Caymanas with Jamaica], the House at once refused to interfere in the internal affairs of another colony." 2.19

The Jamaicans had killed the proposal stone dead. It is instructive to reflect that had the Assembly decided to adopt it instead, the Caymanas also accepting it, the fateful day of the 7th August 1835 would have revealed the Caymanas from their date of British settlement to be so far a dependency of Jamaica as to be subject to that Colony's law. In the event the Assembly's refusal decreed that they had no competence to legislate for the Caymanas, and the failure of the proposal confirmed that the task of legislating for the Caymanas belonged to the British Parliament. That was an outcome wholly in accord with what Lord Sligo had for long argued would be necessary. With a note of weariness a Colonial Office adviser acknowledged the situation.

... The subject of legislation in the Caymanas will have to be provided for, but there must be an Act of Parliament, I suppose, before that can be done....2.20

And there the matter rested for several decades.

Lacking any satisfaction of the perceived need for an authorised legislative instrument, the Island residents had taken responsibility upon themselves. It was by no means the first time that leading persons in the Islands had done something of the sort. Laws had been passed before without any reference to the Governor, who was the sole channel by which British authority extended to the Islands. The 1831 initiative, however, differed from previous such exercises by the inclusion of an elected chamber of "Representatives". Presumably these Representatives were each chosen by a show of hands in meetings of free males in the various districts. Such meetings were also called to decide particular issues, for example, the all-island meeting called in 1836 to decide what stipend the Island would provide to the Clergyman.2.21 But what really marked the post-1831 legislative instrument as a constitutional watershed was that in the 1860's authority was given for its actions to be retroactively validated. In 1863 the Act for the Government of the Cayman Islands (The Cayman Islands Act), was passed in the Parliament of Great Britain (just as Lord Sligo had said such an Act would have to be), acknowledging the uncertainty over what laws applied in the Cayman islands and whether the Justices and Vestry (previously called Magistrates and Representatives) had authority to pass them. The Cayman Islands Act (1) authorised the retroactive validation of the existing post-1831 laws (i.e. making them indisputably valid from their date of purported enactment) subject to their now being signed by the Governor, (2) authorised the Jamaican legislature to apply its own law to the Cayman Islands (not retroactively, but from the date of the Cayman Islands Act onwards), and (3) gave limited power to the Cayman Justices and Vestry to continue to act for the Islands.2.22 The Cayman Islands Act was conceived as a result of an unusually well-focussed and sustained effort on the part of the Colonial Office during 1862 to address and solve the longstanding dependency question. This was seen to be necessary in order to effect successfully a plan to appoint a greatly needed full-time stipendiary magistrate to the Islands. The task of such a person would be made possible only if he had laws to which he could authoritatively refer. Acting on a recommendation by Alexander Heslop, the Attorney-General for Jamaica, to Captain Darling, the Governor, who endorsed it2.23, the Colonial Secretary at the time, the Duke of Newcastle, made detailed enquiry into the extent that the Jamaican Government had ever legislated for the Cayman Islands, in order to make an informed decision about the legal basis of such provision. The new Governor, Lieut - Gov. E. Eyre, had the Attorney General supply him with the necessary legal information and with the Cayman Rules and Ordinances that had resulted from the actions of the Cayman Justices and Vestry. Since no copy of these existed in Jamaica at the time, they had to be specially sent for from Cayman and copied. Having received all this information along with the views of both the Jamaican Attorney General and the Governor, the Colonial Secretary referred to his Department's Law Officers for advice and to the Imperial Law Officers. The following letter, in which can be clearly seen what was developed and refined into the Cayman Islands Act of the 22nd June 1863, was sent to H.M. Government's Attorney General and Solicitor General.2.24

W.S.
18th November 1862
The Attorney General
Solicitor General

Sir F. Rogers - 8 Nov

Mr. Fortescue - 10

Duke of Newcastle 12



Gov. of Jamaica No.70 24 Mch

Duke of Newcastle No. 444 20 Apl

Do 459 6 June

Governor No 66 23 Aug

M.S. Laws of Cayman


Sir,
I am directed by the Duke of Newcastle to enclose for the joint consideration of yourself and the Solicitor/Attorney General the correspondence noted in the margin respecting the legal position of the Caymanas Islands in relation to the Government of Jamaica.

The Caymanas are situated about thirty leagues to the North West of Jamaica, with which they are understood to have only casual means of communication by their fishing and trading Vessels. The population of Grand Cayman, the principal Island of the group, is stated to amount to about 2000 -

The Commissions granted by the Crown to the Governors of Jamaica extend to that Island and its dependencies, but do not specify of what those dependencies consist; and the only authority exercised by the Governors of Jamaica over the Cayman Islands has been the appointment from time to time of Justices of the Peace & officers of Militia. - The Caymans are not represented in the Assembly of Jamaica, and do not contribute to it's revenue; nor does the Assembly legislate for the Islands. The Jamaica laws in force affecting the Caymans relate mainly to their trade with the Colony and do not involve the assumption of Legislative authority over them. The Colonial Attorney General however states that the Jamaica statutes are "considered in force by the Justices and perhaps by the population generally."2.25
From the present papers, it appears that on the 5th December 1831 a Public Meeting in the Island of Grand Cayman2.26 determined to elect Representatives for the purpose of framing Local Laws. Representatives were elected on the 10th & met on the 31st of the same month. The Magistrates also met and formed a separate Chamber.
The two bodies together proceeded without the assent of the Crown or of the Governor of Jamaica to pass "Acts" professing to be enacted "by the Representatives and Magistrates at Grand Cayman".
In 1833 the authority of these Chambers being questioned, the Magistrates & Inhabitants addressed a Memorial on the subject to the Governor of Jamaica. The Governor replied that he would refer the Memorial to the Secretary of State and recommended the Memorialists in the meantime to proceed as theretofore in the regulation of their concerns. The memorial was accordingly forwarded to this Department but no practical step was at that time taken in the matter by H.M. Government.
In 1837 The Magistrates & Inhabitants of the Island "chosen by the suffrages of the people" after reciting that they had no Charter entitling them to meet under the designation of Magistrates and Representatives resolved that their public Meetings should be thereafter designated meetings of the Justices and Vestry.
At this time the position of affairs was again brought under the notice of this Department and it was then in contemplation to apply to Parliament for an Act to enable His Majesty in Council to provide for the judicial and administrative government of the Caymans -
Circumstances however appear to have prevented this intention from being carried into effect.
From 1837 to 1840 Resolutions of the Vestry are substituted for Acts of the Magistrates and Representatives - and since 1840 no Laws or Resolutions have been passed.2.27
Under these circumstances I am desired to request that you will take the correspondence herewith enclosed into your consideration, and jointly with the Solr / Atty General favor the Duke of Newcastle with your opinion on the following points -
1. Whether the Cayman Islands can safely be treated as within the Legislative Jurisdiction of Jamaica.
2. If not whether they can safely be treated as beyond that jurisdiction, and therefore within the reach of the Legislative powers of the Queen given by the Act 23 & 24 Vic. c.21.
3. If the matter is doubtful, whether any better course can be taken than to settle the question by Act of Parliament reciting the doubts w[hic]h exist and enacting
(1) that the Acts of the Magistrates and Representatives and Resolutions of Vestry shall be deemed to be and to have been in force in the Island from their passing:-
(2) that except as affected by these Acts and Resolutions the Laws of Jamaica shall be deemed to be in force in the said Island [n* - Islands?] so far as the same shall be applicable to the circumstances thereof:
(3) that it shall be competent to the Legislature of Jamaica to make Laws for the Caymans and therein to give to the Justices and Vestry or other body or bodies therein such power of legislation for local purposes [n* - "legislation for local purposes" crossed out; making regulations for the Govt of the sd Island] as to them may seem fit - provided that no [n* - such laws ...(illeg.)] regulations hereafter made, shall be of force without the consent of the Governor [n* - of Jamaica] and [n* - that every such Law] shall be liable at any time to be annulled by him [n*1 - "him" crossed out; H.M., with the advice of the P. Council].
-
[Initialled, presumably by the Colonial Law Officer Sir F. Rogers.]

In the event several of the Laws (but by no means all) passed by the Grand Cayman legislators between 1831 and 1863, after being revised, were signed into law by the Governor in 1865, a few being effective from their original date of purported enactment, others being effective from the date of revision a few days before the date of the Cayman Islands Act itself.2.28 An effect of this retroactivity was to confer legitimacy upon the post-1831 law-making body as a legislature subsequently authorised by the Queen in Parliament.2.29 This was a fitting, though now largely forgotten award and memorial to the work of John Drayton and the other pioneering legislators, who by risking an unauthorised but necessary course of action ushered into effect an instrument that was to become a fully authorised legislature. Ironically, the 1863 Act by which legitimacy was conferred upon the local law-making body also sought to reduce its scope by transferring most of its legislative functions to the legislature of Jamaica, but this part of the intention of the Act was never carried out, and eventually in 1893 the Jamaican legislature in the "Cayman Islands Government Law" conferred lawful authority upon the Cayman Justices and Vestry "to make Laws for the peace, order and good government, of the said Islands: Provided that no such Law shall have any force or validity until it shall have received the consent of the Governor of this Island".2.30 Thus the "ugly duckling" of a self-constituted (unauthorised) legislative body grew into a beautiful "swan", a fully authorised and functioning legislature. John Drayton and the Caymanas legislators had succeeded in curbing dangerous and selfish excesses and protecting the fragile plant of justice in the local soil. The work of Peter, Earl of Sligo had similarly come to fruition. Like Mr. Lefevre and Mr. Stanley at the Colonial Office before him2.31 he had seen most clearly what would have to be done to deal successfully with the anomaly at a time when the Colonial Office itself seemed intent on evading the issue. Although he had envisaged the abolition of the self-constituted legislature, he and other Governors respected the local magistrates to the extent of encouraging them in the regulation of their Island's affairs.2.32 He would surely also have been gratified by the outcome.

What the Jamaican legislature had been invited to do in 1835 and refused, was done by the British Parliament in 1863, namely to provide for legislation in the Cayman Islands. The fact that the form of this provision was to confer authority upon the Jamaican legislature to provide Cayman Islands legislation fixes the beginning of the Cayman Islands' legislative dependency upon Jamaica as the 22nd June 1863, the date of the Cayman Islands Act. In chapter 1 the end of dependency upon Jamaica was shown to be the 4th July 1959. However, the Governor of Jamaica had authority deriving from Crown and Parliament over the Cayman Islands both before and after the period of legislative dependency upon Jamaica. The Governor of Jamaica did not derive his powers in Cayman from Jamaican legislation, outside the period of Cayman's legislative dependence upon Jamaica. Moreover, it is remarkable that there was a Caymanian law-making body, subsequently authorised by the authority of the Crown, passing and enforcing laws for the inhabited portion of the Cayman Islands (i.e. Grand Cayman), in effect while the Jamaican legislators were describing the Caymanas as "that dependency of His Majesty".2.33 This can be clear to us, looking back as we do on these events. It was not clear to people living before the defining events, however, nor was it even clear to most who were living through the events. We can be misled by expressions they used that were little more than assumptions if we do not have sufficient grasp of the course and meaning of the defining events themselves. It is critically important for us to have a firm understanding of these significant events in and for the Caymanas of the nineteenth century.
1*Note made by another hand