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impunity, but would be subject to punishment according to the laws of the colony in which he was resident; and as to the second question, we think the circumstance of the libellous statements being irrelevant and unnecessary would not in England subject the party to punishment in the case of such a petition as would be deemed a privileged communication.
As to the third question, it would with reference to this subject be difficult to separate the characters of Governor and Judge, and to say that any petition of this description was presented to the Governor merely in his judicial capacity. But even if such separation could be made, and it were clear that the petition was presented to him solely in his judicial character, still if he had authority to interfere in the matters to which the petition related, such petition would, we think, according to the law of England, be a privileged communication.
As to the fourth question, we are of opinion that his Majesty's subjects born in Great Britain do not enjoy any privileges in the above respects, while actually resident at the Cape, distinct from those of the Dutch inhabitants who have become his Majesty's subjects by the cession of the colony.
To Earl Bathurst, J. S. Copley.
&c. &c. &c. Chas. Wetherell.
(3.) Joint Opinion of the King's Advocate, Sir Herbert Jenner, and the Attorney and Solicitor General, Sir Charles Wetherell and Sir Nicolas Tindal, on a trial of Pirates at Malta; on a Jury de medietate, and Might of Challenge in that case.
Doctors' Commons, April 24, 1828.
Sir,—We are honoured with your commands, signified in your letter of the 8th instant, transmitting a case which has been prepared under your direction, respecting certain persons who have been capitally convicted of piracy before the Court for the trial of pirates at Malta; and you are pleased to request that we would, with the least possible delay, report for his Majesty's information our opinion upon the question proposed for our consideration at the conclusion of that case.]
In obedience to your commands, we have the honour to report that we think the sentence against the three convicts mentioned in the preceding statement may be legally carried into effect. For we conceive the object of the Legislature in passing the 46 Geo. 3 was to substitute a trial by the common course of the law in England where persons are charged with piracy in colonies and other places beyond sea, instead of a trial by the course of the civil law, which had been directed by the statute 11 Will. 3; and we think the Act must have a reasonable construction put upon it, and that it must intend a trial by jury, so far as the forms of that trial are practicable in the country where it takes place.
Indeed, to construe the Act as requiring the trial by jury in all the exact forms for naming and summoning the jury prescribed by the law of England would be to make the statute a dead letter. It appears that the charge was first submitted to persons summoned in the nature of a grand jury, and found by them to be a true bill. The number, indeed, of such jurors is not expressly stated, but we assume that twelve of the jurymen concurred in such finding of the bill, and that such twelve constituted a majority. The trial then took place by twelve persons, half being subjects of his Majesty and half being aliens, and chosen out of a number summoned to serve on the jury amply sufficient to allow of all the challenges to which the prisoners were entitled (i). We are of opinion, therefore, that the Act has been complied with as closely as circumstances would allow, for a mode of naming and summoning the jury more conformable to the English law is stated to be impracticable in the island.
As to the objection that two of the alien jurymen were disqualified upon the ground of their having been attainted of treason and felony, and outlawed in consequence thereof by the law of a foreign country, we see no reason to believe that parties so circumstanced come within the scope of the exception in 6 Geo. 4, c. 50, s. 3, which we think must be interpreted as descriptive of persons attainted and outlawed by the English law. And, at all events, in the present case the objection came too late, for it was properly the ground of challenge only, which must be made before the jury
(i) In the Notes to Chapter IV. (p. 117, ante), I have expressed an opinion that pirates, although foreigners, are not entitled to be tried by a jury de medieiak; . but I do not feel at all sure on the point.
men are sworn, and cannot be insisted upon afterwards. And here it appears by the statement that the prisoners must have been aware of the objection before the trial, inasmuch as we collect that it was taken and proved before the jury was discharged. Upon the whole, therefore, assuming the grand jury to have been constituted as above supposed, we think the inquiry and trial has been according to the common course of the law of England within the meaning and construction of the Act. Upon the other part of the statement in the petition, which appeals to a merciful consideration of the case, we do not of course presume to give any opinion.
The Right Hon. Mr. Sec. Huskisson, Chas. Wetherell. &c. &c. &c. N. 0. Tindal.
In case it should upon further investigation be ascertained that the prisoners and their counsel were unacquainted with the ground of challenge at the time when such challenge ought to have been taken, we think it right to state that that circumstance will not, in strictness of law, make any difference whatever, as the challenge must be taken before the trial begins. But at the same time, as a reasonable doubt may be raised that the prisoners, from inadvertency or ignorance, have lost an advantage, it may be matter of discretion for the Crown whether the severest measure of punishment should be inflicted in that case.
Herbert .tenner. Chas. Wetherell. April 30, 1828. N. C. Tindal.
(4.) Joint Opinion of the Attorney and Solicitor General Sir Thomas Denman and Sir William Horne, on the Right of Slaves to claim Benefit of Clergy, and degree of certainty required in an Indictment.
Lincoln's Inn, January 24, 1832. My Lord,—We feel ourselves bound to take the earliest opportunity of answering your Lordship's letter of the 18th instant, which submits to our consideration a case respecting the trial of certain slaves in the island of Tortola, because the doctrines on which the claim to benefit of clergy on the part of-slaves in Tortola has been resisted in that island, go the whole length of depriving that class of all protection from the law, except where special enactments have been made in their favour.
According to those doctrines, the inquiry whether a slave has been lawfully convicted before he is put to death must always be superfluous, for he is boldly declared to derive no protection from the common law, and to be out of the King's peace. Not only the public executioner, therefore, but any private individual is at liberty to treat him in any way he may think proper, subject only to such penalties (if any) as may have been specifically provided for the fact committed, and to such damages as the owner may recover for the injury done to his property in the slave.
These doctrines do not appear to have been universally adopted. The Commissioners for legal inquiry have in their reports distinctly pronounced their opinion that slaves, as subjects of his Majesty, are entitled to the protection of the common law, and many lawyers in the colonies have plainly viewed the subject in the same light. We do not hesitate to inform your Lordship that such is also our opinion, and it follows that to deprive a slave of life without lawful authority must be murder or manslaughter, according to the circumstances of the particular case.
Having cleared away this preliminary difficulty, which would have precluded all further inquiry, we beg leave to state that we have read the case attentively, and think the questions correctly propounded at its close,—whether the indictment against Sam Fahie, Andrew Fahie, Johnns Purcell, Jacob Kierney, and MacDaniel (otherwise called McDonald), is sufficiently precise and definite to be sustained in point of law; and, secondly, whether the slaves ought to be admitted to their benefit of clergy.
We entertain no doubt on the first point. The indictment is, in our opinion, completely worthless, as giving the accused no notice of the offence with which he stands charged. The first principles of law require that the charge shall be so preferred as to enable the Court to see that the facts amount to a violation of the law, and the prisoner to understand what facts he is to answer or disprove.
No argument is necessary to show that this indictment is insufficient, and unavailing for either purpose.
If sufficient overt acts had been set forth, and the jury had found the prisoners guilty, we are inclined to think, on the very technical point relating to benefit of clergy, that the prisoners would not have been entitled to that privilege. But we deem this discussion unnecessary, after giving a deliberate opinion on the nature of the indictment.
But, with a view to the future administration of criminal law in Tortola, and in other colonies where similar laws may have been made, we crave permission to express our serious doubts whether the law of 1783 is not in its own nature too vague, indefinite, and unintelligible to be capable of enforcement in any case: in other words, whether it is not, like some other legal instruments canvassed in courts of justice, void for uncertainty.
We also conceive that this law may well be challenged as being contrary to natural justice. The crime to be punished is thought not even requiring to be evinced by any overt act. The only overt act mentioned (and that as a separate crime) is speaking words tending to mutiny, &c. But unless they should be wilfully spoken it is against reason to punish the utterer.
Sir Edward Coke, in the eighth part of his Reports (page 118), records the opinion of the Court of King's Bench, that "in many cases the common law will control Acts of Parliament, and sometimes adjudges them to be utterly void;" and though Blackstone (1 Com. 85) questions the right of the judicial authority to overrule the legislative, he exemplifies the manner in which the former may easily elude the latter.
For avoiding such collisions, and for establishing a criminal law which may admit of no difficulties in the execution, we respectfully suggest the propriety of a speedy change in that upon which the questionable indictment against the five slaves has been founded.
To the Bight Hon. Visct. Goderich, T. Denman.
&c. &c. &c. Wm. Horne.
(5.) Joint Opinion of the Attorney and Solicitor General, Sir William Horne and Sir John Campbell, on the Power of the Crown to grant a Conditional Pardon.
Lincoln's Inn, December 26, 1832. My Lord,—We have the honour to acknowledge the receipt of your Lordship's letter of the 28th November last, transmitting to us a copy of a despatch dated 31st May last, which your Lordship