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strument; and it appears to us that the two statutes taken together are of universal application to all the colonies, and to all officers appointed by any instrument whatever. Any inconvenience arising from this must be remedied by the Legislature.
W. W. Follett.
(14.) Joint Opinion of the Attorney and Solicitor General, Sir J. Jervis and Sir J. Romilly, on the Grant of a Conditional Pardon for Murder in British Guiana.
Temple, December 12, 1849.
My Lord,—We are honoured with your Lordship's command, contained in Mr. Merivale's letter of the 21st ultimo, in which he stated that he was directed by your Lordship to transmit to us the enclosed papers, with a request that we would favour you with our joint opinion on the following question :—
A criminal has been co evicted of murder by the Supreme Court of Criminal Justice in Demerara and Essequibo. The Governor wishes to extend to this offender the mercy of the Crown, subject to the condition of imprisonment for life—a punishment which is recognized by the law of British Guiana.
But he has been advised that his power to do so is doubtful. It is derived from his commission, which authorizes him to grant to any offender " a free and unconditional pardon, or a pardon subject to such conditions as by any law in force in the said colony may be thereunto annexed."
But it is stated that by the Dutch law, in force in British Guiana prior to the capitulation, no pardon could be granted by the Governor in cases of murder; and, consequently, that no such law is in force in the colony as is contemplated by the commission. The questions, therefore, on which our advice was requested, were—
1st. Whether we considered that the Governor possesses the power which he wishes to exercise? and,
2nd. If we should be of opinion that he does not, what is the most advisable course, both in order to grant the pardon in the present instance, subject to the requisite condition, and also to obviate the occurrence of the same difficulty?
Mr. Merivale also stated that he was directed to annex copies of the Governor's despatch on this subject, and the opinion given by the Attorney General of British Guiana, and extracts of So much of the Governor's commission and instructions as regard the question.
In obedience to your Lordship's command, we have considered the various documents submitted to us, and have the honour to report that, in our opinion, the Governor does possess the power which he wishes to exercise. The conditions referred to in the patent do not depend upon the nature of the crime pardoned, but upon the legality of the conditions themselves.
The Right Hon. Earl Grey, John Jervis.
&c. &c. &c. John Romilly.
(15.) Joint Opinion of the Attorney and Solicitor General, Sir A. E. Cockburn and Sir Richard Bethell, on the Grant of a Conditional Pardon by the Governor of a Colony in virtue of the general power to pardon conveyed by his Commission .
Temple, February 1(3, 1853.
My Lord Duke,—We were honoured with your commands, contained in Mr. Merivale's letter of the 9th instant, in which he stated that he was directed by your Grace to request that we would favour you with an answer to the following question :—
Whether the Governor of Barbadoes can, by virtue of the power entrusted to him by his commission, commute sentences of death passed by a criminal court in Barbadoes to imprisonment for a term of years?
Mr. Merivale was also directed to annex an extract of the commission of the Governor, and also a despatch received on the subject from the Governor of Barbadoes.
In obedience to your Grace's commands, we have considered the documents transmitted to us, and have the honour to report that the power to grant conditional pardons has always been held to be incidental to the general power to pardon vested in the Crown as part of its prerogative.
By means of such conditional pardons, the Crown was enabled to commute the punishment of death for that of transportation, a punishment unknown to the common law, independently of any statutory enactment.
We are of opinion, that the power to pardon, conferred on the Governor of Barbadoes by his commission, carries with it the power to commute the sentence of death for a minor punishment, by means of a pardon conditional upon the delinquent undergoing the substituted punishment.
His Grace the Duke of Newcastle, A. E. Cockburn.
&c. &c. &c. Bichard Bethell.
(16.) Joint Opinion of the Attorney and Solicitor General, Sir A. E. Cockburn and Sir B. Bethell, that the Power of Pardon is not vested in the Superintendent of Honduras.
Temple, July 3, 1854. Sir,—We were honoured with his Grace the Duke of Newcastle's commands, contained in Mr. Merivale's letter of the 13th April last, in which he stated that he was directed by his Grace to transmit to us copy of a correspondence between the Colonial Office and the Local Government of Honduras, on the question of the exercise of the prerogative of mercy by the Superintendent of that settlement.
And he further stated that he was to request that we would take these papers into consideration, and report to his Grace whether, in our opinion, the Superintendent of Honduras possesses, under his commission from the Governor of Jamaica, and the Act of the public meeting (sic) " to amend the system of government of British Honduras" (copies of which were annexed), or otherwise, power to exercise her Majesty's prerogative of pardon.
Mr. Merivale concluded by stating that his Grace did not think it necessary to do more than direct our attention to the peculiar circumstances of the settlement of Honduras, and the Acts relating to it (57 Geo. 3, c. 53, and 59 Geo. 3, c. 54) which had been frequently under our and our predecessors' consideration: and also to a letter from Her Majesty's Law Officers, dated the 14th March, 1851, in which the opinion was intimated that the recitals of those Acts are not at present fully applicable to the settlement.
In obedience to the above request, we have fully considered the Acts of Parliament, the Superintendent's commission, and also the Colonial Act to which the letter refers, and have the honour to report—
That we think the power to exercise Her Majesty's prerogative of pardon was not, at the time when the Act of the public meeting was passed, a power that was vested in, or could be lawfully exercised by, the Superintendent; and that section 44 of the lastmentioned Act must be construed as vesting in the officer administering the government of Honduras such powers only as theretofore had been lawfully exercised by the Superintendent; and that in our opinion the Superintendent of Honduras does not possess the power to exercise Her Majesty's prerogative of pardon.
The Right Hon. Sir G. Grey, Bart., A. E. Cockburn.
&c. &c. &c. Richard Bethell.
(17.) Joint Opinion of the Attorney and Solicitor General, Sir R. Bethell and Sir H. S. Keating, as to the legal meaning of the phrase " Governor in Council."
Lincoln's Inn, December 17, 1857.
Sir,—We were honoured with your commands, signified in Mr. Merivale's letter of the 11th of December instant, in which he stated that he was directed by you to send to us copy of a despatch from the Governor of the Bahamas, and to request that we would favour you with our advice as to the answer to be returned to the Governor's question: namely, whether, where any act is to be done under colonial enactment (confirmed by the Crown) by the Governor, in either of the three forms specified in the despatch, the personal presence of the Governor in the Council is necessary to the legal performance of the act?
In obedience to the request contained in Mr. Merivale's letter, we have the honour to report—
That we have considered the despatch from the Governor of the Bahamas. The royal instructions treat the presence of the Governor as necessary at every meeting of the Executive Council. They dispense with his presence in cases only of some insuperable impediment.
Whenever the Governor is physically able to attend, he is bound to be present. Of the three forms of expression cited in the despatch as contained in Colonial Acts confirmed by the Crown, we are of opinion that where a colonial enactment enjoins certain things to be done "by the Governor in Council," the Governor must be present, and the royal instructions do not control the Act so as to admit of the things being done in the absence of the Governor, even though such absence be caused by some insuperable impediment.
Secondly and Thirdly.—Where the Colonial Acts enjoin certain things to be done "by the Governor, with the advice of the Executive Council," or simply to be done " with the advice and consent of the Executive Council," the forms of expression do not require the actual presence of the Governor in Council as a necessary condition, but the enactments, of course, do not control or dispense with the necessity of obeying the instructions; and in these two latter cases, therefore, whenever the attendance of the Governor is prevented by an insuperable impediment, the Act may be done by the Council, with the subsequent concurrence of the Governor.
The Right Hon. H. Labouchere, M.P., Richard Bethell.
&c. &c. &c. Henry S. Keating.
(18.) Opinion of the Solicitor General, Sir Hugh Cairns* as to Legality of Government of a Colony administered by Officer appointed by the Governor in the absence of the Officer on whom that function devolved by Royal Charter.
Lincoln's Inn, July, 1858.
Sir,—I am honoured with Mr. Merivale's letter of the 10th instant, stating that he was directed by you to transmit to me for my opinion thereon the following Case, with its enclosures :—
By the Boyal Charter of 1850, which provides for the government of the Gold Coast, it was ordained that in case of the Governor's death or absence, the government should devolve on the LieutenantGovernor; and if there should be no Lieutenant-Governor, on the Judicial Assessor; and if there should be no Judicial Assessor, on the Senior Puisne Justice.
That it has lately, however, been deemed expedient to issue a supplementary charter altering the preceding provision for the administration of the government, so far that in case of the Governor's death or absence, if there should be no Lieutenant-Governor, the government is appointed to devolve on the Colonial Secretary.