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received in the month of June from the Governor of Antigua; and the copy of a despatch from yourself to the Governor, dated 19th of the same month; the copy of a despatch from the Governor to your Lordship, dated 30th August, and of two enclosures contained iu it—these papers comprising the answer of the law officers of the Crown of Antigua to three questions proposed by your Lordship for their consideration, and requesting us to report to your Lordship our opinion with reference to these questions. We beg to state to your Lordship that we entirely concur in opinion with the law officers of Antigua upon the several questions submitted to us.
1st. We think that the introduction of the slave Mary into Antigua from Saint Bartholomew, under the circumstances stated, was not a violation of the Act for the abolition of the slave trade; as this Act could not be meant to prevent a fugitive slave, who had absconded from his master to a foreign island, from voluntarily returning or being brought back by the person who induced his clandestine departure.
2nd. The Colonial Act on which this indictment proceeded appears to us to define with sufficient clearness the offence for which the prisoner was tried.
3rd. We are of opinion that if the party, after accepting the conditional pardon, should in breach of the conditions return to the island, he might in strictness be referred back to his original sentence, and, his identity being proved, execution might be awarded against him.
There is hardly anything to be found respecting conditional pardons in the old English law-books (i); but the authority of the Crown to grant a conditional pardon in capital cases is distinctly recognized in statute 5 Geo. 4, c. 84, s. 2; and it has been several times decided by the English Judges, that where the condition on which a pardon was granted has been broken, the offender may be referred to his original sentence. But we feel it our duty to add that this power, in our opinion, could only be properly used for compelling a performance of the condition.
To the Right Hon. Visct. Goderich, W. Horne.
&c. &c. &c. J. Campbell.
(i) The Crown may extend its mercy on what terms it pleases, and consequently may annex to its pardon any condition that it thinks fit, whether prece
(6.) Joint Opinion of the Attorney and Solicitor General, Sir Frederick Pollock and Sir William Follett, on the commutation of Sentence of Death to Transportation, with consent of the Convict.
Temple, August 31, 1842.
Sir,—We beg to acknowledge the receipt of your letter of the lUth instant, wherein you state that George Hiscock, a soldier of the 76th Regiment, having been sentenced by the civil courts in Nova Scotia to death for the crime of firing at a sergeant of that corps with intent to kill, the Lieutenant-Governor of the province, at the instance of the jury, recommended a mitigation of the sentence.
The Lieutenant-Governor was in consequence authorized to commute it for transportation for life: on consulting, however, the Attorney General of the province, that officer has suggested doubts as to the mode in which the proposed mitigation of punishment can be lawfully carried into execution.
You were pleased to enclose for our information a copy of the despatch from the Lieutenant-Governor, communicating a copy of the report made by the Attorney General; and you further stated that you had been directed by Lord Stanley to request that we would take the subject into our early consideration, and state to his Lordship our opinion respecting the steps to be taken for giving effect to Her Majesty's directions in favour of the prisoner.
In obedience to his Lordship's commands we have taken this matter into our consideration, and have the honour to report that we think a pardon ought to be granted under the Great Seal of the province, in which the condition of transportation and the place to which the convict is to be transported should be clearly expressed. The consent of the convict in writing should be previously obtained ; |
dent or subsequent, on the performance whereof the validity of tlie pardon will depend: Hawkins P. C. Bk. ii. c. 37, s. 45; see R. v. Miller, 2 W. Bl. 797; B. v. lladan, 1 Leach, C. C. 223; R. v. Dickie, ib. 390; and the Opinion of the Law Officers, p. 76, ante. See also Stat. 16 & 17 Vict. c. 99, s. 6. As to cases where the Crown extends mercy to a prisoner convicted of a capital offence upon condition of his being kept to penal servitude for any term of years, or for life, Bee The Queen v. Baker, 7 Ad. & Ell. 502; Leonard Watfon't Case, 9 Ad. & Ell. 783.
after this we think the convict may lawfully (under 5 Geo. 4, c. 84, s. 17) be brought to England in order to be conveyed to the place to which the transportation applies (i).
G. W. Hope, Esq. F. Pollock.
&C &C. &C. W. W. FOLLETT.
(7.) Joint Opinion of the Attorney and Solicitor General, Sir A. E. Cockburn and Sir Richard Bethell, that commutation of sentence from Transportation to Imprisonment urithout consent of the Convict is illegal.
Temple, May 3, 1854.
My Lord Duke,—We were honoured with your Grace's commands, contained in Mr. Merivale's letter of the 20th ultimo, in which he stated that he was directed by your Grace to transmit to us copy of a despatch and its enclosure from the Governor of Barbadoes, reporting the commutation of a sentence for manslaughter; also copy of the section of the Barbadoes Act referred to (5 Will. 4, c. 9, s. 9); also of a further despatch, enclosing a letter addressed to your Grace by the counsel for the prisoner, in his behalf.
Mr. Merivale further stated that he was directed to request that we would take these papers into our consideration, and report whether we considered that the commuted sentence of nine years' imprisonment was legally awarded in this case; and if not, what steps it would be proper for the Governor of Barbadoes to take?
In obedience to your Grace's command, we have taken the several papers transmitted to us into our consideration, and have the honour to report that we are of opinion that the commutation
(i) It has been laid down that no man can contract for his own imprisonment: Clark's Case, 5 Rep. 64 a; Foster v. Jackson, Hob. 61; Case of James Sommersett, 20 State Tr. 60. But, as was determined by the Court of Queen's Bench in Leonard Watson's Case, 9 Ad. & Ell. 783, this has no application to the case of a man charged with a crime, but permitted by the law to confess it before arraignment, and so enabled to obtain a pardon, by which his life is spared, but he binds himself to undergo a less severe punishment . In that case the Legislature of Canada had passed an Act authorizing the Governor to grant a pardon to such persons charged with high treason as should before arraignment confess their guilt and petition for a pardon, on such conditions as should seem fit; and the prisoner was so charged and so pardoned on condition of being transported to Van Piemen's Land for life.
of the sentence of transportation to imprisonment for nine years is illegal.
The Crown has no powgrt except when such a power is expressly given hy Act, of Parliament, tr» commute a sentence passed by a court of justice. Practicallyj. indeedj .commutation of punishment has long taken place under the .form of conditional pardons. For the Crown, having by the prerogative the power of pardon, may annex to a pardon such conditions as it pleases. Thus, for offences for which the punishment was death, where it was not deemed advisable to carry the sentence of death into execution, the course, from an early period, was to grant a pardon on condition of the convict being transported to some settlement or plantation.
But this could only be done with the consent of the felon. The Crown cannot compel a man, against his will, to submit to a different punishment from that which has been awarded against him in due course of law.
The sentence of transportation passed in the present case cannot, therefore, be changed into one of imprisonment, unless the substituted punishment be assented to by the prisoner as a condition of the remission of the sentence of transportation.
Even then, as the law has fixed the maximum of imprisonment, as corresponding to the maximum of transportation, at four years, it seems to us, that if the sentence of transportation be commuted into imprisonment, it would be desirable to act in consistency with the principle adopted by the legislature as to the relative proportions of the two punishments, and not to insist on a longer term of imprisonment than four years.
His Grace the Duke of Newcastle, A. E. Cockburn.
&C. &C. &C RlCHARD BETHELL.
(8.) Joint Opinion of the same Law Officers, that in such a case the Original Sentence may he carried into execution.
Temple, July 5, 1854. Sir,—We were honoured with his Grace the Duke of Newcastle's commands, contained in Mr. Merivale's letter of the 12th ultimo, in which he stated that, with reference to our letter of the 3rd of May last—wherein we reported that the commutation, by the Governor of Barbadoes, in a case of manslaughter, of a sentence of transportation for life into one of imprisonment for nine years, was illegal under the law of the island—he was directed by his Grace to request that we would favour him with our further opinion, whether the original sentence of transportation may now be legally carried into execution.
In obedience to the above request we have again considered the subject, and have the honour to report—
That, inasmuch as the commutation by the Governor of Barbadoes of the original sentence into one of imprisonment for nine years was null and void, not being warranted by law, we are of opinion that the original sentence remains, and may be legally carried into execution. Under the circumstances, we think an offer should be made to the convict to commute the original sentence into a sentence of four years' imprisonment with hard labour; and if the convict refuses to assent thereto, that the original sentence should be carried into effect.
The Right Hon. Sir G. Grey, Bart., A. E. Cockburn.
&c. &c. &c. Richard Betheli.
(9.) Joint Opinion of the Attorney and Solicitor General, Sib John Campbell and Sir R. M. Rolfe, that a Witness admitted to give Evidence for the Crown cannot refuse to ansicer questions on the ground that his answers may criminate himself, and that a Conviction obtained after such refusal is bad.
Inner Temple, October 12,1835. My Lord,—We have to acknowledge the receipt of a letter from your Lordship, dated the 29th ultimo, together with a despatch from the Governor of the Windward Caribbean Islands, dated the 22nd of July last, with various enclosures relating to the case of George Lindsay, a prisoner in the common gaol of St . Vincents, who was tried by the supreme criminal court of that island for stealing a musquet—in which letter your Lordship is pleased to desire that we should report whether there was any valid objection, in point of law, to the conduct of Lindsay's trial, or to his conviction? We beg leave, therefore, to state to your Lordship that, in compliance with your Lordship's desire, we have taken this case into our consideration, and we are clearly of opinion that the trial of Lindsay wa not conducted according to law.