Page images
PDF
EPUB

The chief witness against Lindsay was a man of the name of Welbank, an accomplice, who was admitted as evidence for the Crown. Being so admitted, he was bound to disclose the whole truth relative to the charge in question, without regard to the consequences to himself, and he could not refuse to answer any question on the ground that it would show him to have been engaged in the same theft for which Lindsay was tried. The Court, however, permitted Welbank to decline answering many of the questions put to him, on the plea that he would be thereby criminating himself, and thus let his evidence go to the jury in an imperfect state.

We think this was clearly wrong, and consequently that the conviction was improperly obtained.

J. Campbell.
R. M. Rolfe.

(10.) Joint Opinion of the Attorney and Solicitor General, Sir John Campbell and Sir R. M. Rolfe, on the illegality of an Ordinance passed by the Governor and Council of Lower Canada, directing certain persons to be transported to Bermuda and detained there.

Temple, August 6,1838.

Hy Lord,—In answer to your Lordship's letter of the 4th instant, requesting our opinion whether there is any objection, in point of law, to the confirmation by Her Majesty in Council of an ordinance passed by the Earl of Durham and the Special Council of Lower Canada, on the 28th June last, entitled, "An Ordinance to provide for the security of the Province of Lower Canada," we have to state that, in our opinion, so much of this ordinance as directs the class of persons therein first enumerated to be transported to Bermuda, and to be kept under restraint there, is beyond the power of the Governor and Special Council, and void; but that all the rest of the ordinance is within their power and valid.

The imperial stat. 1 Vict. c. 9, s. 2, authorizes the Governor and the Special Council to make such laws or ordinances for the peace, welfare, and good government of the province of Lower Canada, as the Legislature of Lower Canada as there constituted was empowered to make, with certain exceptions which do not affect the validity of the ordinance in question. The Legislature of Lower Canada, as constituted by 31 Geo. 3, e. 31, had conferred upon it a general sovereign legislative power within the province, and it is expressly enacted that all Acts passed by this legislature shall be valid and binding, to all intents and purposes, within the province in which the same shall have been passed.

We conceive, therefore, that the old legislature might have lawfully passed an Act for banishing from the province the first class of persons described in this ordinance, and enacting that if any of this class or of the second class should return to the province without the leave of the Governor, they should be deemed guilty of treason, and being convicted thereof should suffer death. This could not be done by the proclamation of the Governor, but it is an act of legislation for which there are precedents in the Parliaments of Great Britain and of Ireland. There is no pretence for saying that if this part of the ordinance really were put in force the parties who suffer would be put to death without trial. Before they could suffer they must be indicted for having returned to the province without leave of the Governor, which by law is made treason, and they could only suffer on being duly convicted of the offence laid to their charge. Of course we are only considering the regularity of such a proceeding in strict law, without giving any opinion as to its being expedient or proper.

With respect to that part of the ordinance which is to be executed beyond the limits of the province of Lower Canada, we are of opinion that it would acquire no force by being confirmed by Her Majesty, and we humbly conceive that in confirming the ordinance by Her Majesty that part of it which exceeds the power of the Governor and Special Council ought to be expressly excepted.

The Lord Glenelg, J. Campbell.

&c. &c. &c. R M. Rolfe.

(11.) Joint Opinion of the Attorney and Solicitor General, Sir John Jervis and Sir John Romilly, on the power of Police Constables to arrest in certain cases without Warrant. 1849.

Case.—Whether police constables are authorized to arrest and detain, without warrant, persons charged with the offences mentioned in the 64th and 65th sections of the Police Act (2 & 3 Vict, c. 47), upon the mere statement of the party making the charge, unsupported by any corroborative circumstances or evidence; or under what circumstances such arrests without warrant are justifiable?

Opinion.—This question presents difficulties which can only be solved by prudence on the part of the officer. On the one hand, it would be highly improper to act in cases where the consequence is so serious upon mere suspicion; while on the other, if the police were only to apprehend parties charged with such offences upon the view, or in cases where corroborating evidence was forthcoming, offenders would escape and the public would be dissatisfied. Upon the strict construction of the statute no corroborative evidence is essential. If the constable has "good cause" to suspect, he may arrest upon the statement of one witness only. But whether the cause of suspicion is good or not must in such case depend upon circumstances. For instance, if an interval unexplained by the accuser have elapsed between the assault and the complaint, the constable should not act without a warrant. So of course, if in the inquiry the constable have reason to doubt the truth of the complainant's story, or believe that he has entrapped the accused for the purpose of the charge, the cause of suspicion would not be good, and the constable ought not to act without a warrant. On the other hand, if the constable be attracted to the spot by the cries of the complainant, or if the accused give a contradictory or unsatisfactory account of himself, the constable should act without a warrant . We have mentioned these different circumstances only in illustration of what we have above said—viz., that much must be left to the prudence and discretion of the officer; and repeat that, in strictness, no corroborative evidence is necessary, but that the circumstances and charge must be such as would justify a reasonable man in suspecting that the offence had been committed (i).

John Jervis.

Temple, December 31,1849. John Romixly.

(i) A private individual may justify an arrest for felony without warrant, if he can show either that a felony was in fact committed by the person arrested, or that a felony was committed by some one, and that he had probable cause to

(12.) Joint Opinion of the Attorney and Solicitor General, Sir A. E. Cockbitrn and Sir Richard Bethell, as to the illegality of the delivery up of Russian Sailors (Deserters), and the conveyance of them back to their ships.

Case.—Some Russian sailors were found wandering in the streets of Guildford without any visible means of subsistence, and were locked up for the night by the superintendent of police. They were afterwards identified by a Russian naval officer as deserters from a Russian man-of-war which had arrived in England, and they were conveyed by him to Portsmouth with the assistance of the superintendent. The Law Officers were requested to advise as to the legality of the proceeding.

Temple, January 3, 1854. Opinion.—We are of opinion that the delivering-up of the Russian sailors to the lieutenant, and the assistance offered by the police for the purpose of their being conveyed back to the Russian ship, was contrary to law.

A. E. Cockburn.
Richard Bethell.

(13.) Joint Opinion of the same Law Officers, as to how far Statute 16 & 17 Vict. c. 99, abolishing Transportation in certain cases, is in force in the Colonies.

Temple, December 5, 1858. Sir,—We were honoured with your commands, contained in Mr. Merivale's letter of the 15th ultimo, in which he stated that he was directed by you to transmit to us the accompanying despatch from the Governor of New South Wales, with its enclosures, and to request that we would favour you with our advice on the following point:—

That, referring to the letter of the 20th of February last, from

suspect the person arrested to be the felorj. "It is lawful," said Abbott, C J., in Ex parte Kraus, 1 B. & C. 261, "for any person to take into custody a man charged with felony, and keep him until he can be taken before a magistrate:" Mure v. Kaye, 4 Taunt. 34; West v. Baxendale, 6 C. B. 141. A constable is justified in arresting any person whom he has probable cause to suspect of having committed a felony, even although the prisoner is found not guilty, or it turns out that no felony was committed by anybody: Beckwith v. Philby, 6 B. & C 635.

the Horse Guards to the General Officer commanding at New South Wales, and to our own opinion, as stated in that letter, as to sentences of transportation passed on military offenders, were we of opinion that the same principle applies to sentences of transportation passed by the ordinary Courts in the colonies on the other offenders, insomuch that all such sentences, passed since the 16 & 17 Vict, c. 99 came into operation, and which, if passed in England, would have been invalid by reason of that Act, were invalid and could not be enforced?

In obedience to your request, we have taken the subject into our consideration, and have the honour to report—

That, in our opinion, the question whether the principle embodied in our opinion as to sentences of transportation passed on military offenders applies to sentences of transportation passed by the ordinary Courts in the colonies, and whether, consequently, such sentences, passed since 16 & 17 Vict. c. 99, which, if passed in England, would have been invalid under that Act, are invalid and cannot be enforced, must depend materially on the constitution of the particular colony, and whether the law is administered in such colony under the authority of the British Crown, or under the laws passed by the local legislature. Generally speaking, Acts of Parliament do not apply to the colonies, unless the latter are expressly specified therein; but some classes of statutes, which appear to be of imperial concern, and to affect the whole of the dominions of the Crown, have been held to be excepted from this rule.

In the case of military offences, the trial takes place under the martial law, as established by the Mutiny Acts. In such a case there is no doubt that the 16 & 17 Vict. c. 99 applies, though the trial takes place in a colony. We are disposed to think, looking to the general scope and purport of the Act in question, that it would apply generally to sentences passed in the ordinary Colonial Courts also; but, as we have just pointed out, there may be circumstances of local legislation or law, which may make the local application of this statute, in which no reference is made to the colonies, very questionable.

We concur with the Law Officers of New South Wales in thinking

« PreviousContinue »