881
187
(12)
୯
In the Governor's Instructions under the Royal Sign Manual and Signet (Art. XXIX) the provision of the Charter as to Pardons is recited, and the practice to be observed in such cases is laid down, and the Governor is forbidden to pardon any offender unless upon receiving the advice of the Executive Council thereon. Ordinance No. 1 of 1860 regulates the powers of the Governor as to Conditional Pardons, and defines exactly the conditions which he may annex to a pardon.
Since my return to the Colony in December, 1868, I have heard of criminals being liberated upon certain conditions as to Branding, Deportation, and Flogging, but I never was consulted until now as to the legality of these proceedings, and I have always been under the impression that the system was carried on in pursuance of Special Instructions from the Secretary of State.
Whether the system be objectionable or not, having regard to the exceptional conditions of the Colony as to crime, is a secondary consideration. The important question upon which my opinion is required is whether the Governor possesses the legal power to carry it out. I have therefore referred to the Despatches on the subject and the following appears to be the state of the case.
In 1866 an Ordinance was passed (No. 8 of 1866) which by Section XV provided that criminals might on their own petition be liberated on condition of being branded and deported, and it also enacted that if found again in the Colony, they were to be flogged and remitted to their original sentence.
Lord Carnarvon, who was then Secretary of State for the Colonies, objected altogether to this Clause, and directed it to be expunged from the Ordinance. The Duke of Buckingham, however, who succeeded Lord Carnarvon at the Colonial Office, after further correspondence on the subject, consented to permit the Clause to stand with the following modification, namely, that the flogging should not be inflicted unless the criminals not only returned to the Colony, but were again convicted of a crime.
His Excellency Sir Richard Graves MacDonnell thereupon caused Ordinance No. 8 of 1866 to be repealed, and it was re-enacted as No. 9 of 1867, but the provisions of Section XV were entirely omitted.
The Governor's reasons for leaving them out are given in his Despatch transmitting a copy of the new Ordinance; and in it he proceeds to state that as no power is now conferred on the Governor to deal with criminals in the manner proposed, "the Executive can only deal with them in accordance with engagements which they may voluntarily enter into."
I can find no trace of any further allusion to the subject, except in Paragraph 13 of the Governor's Report accompanying the Hongkong Blue Book for 1866, dated October 29th, 1867.
The Queen may extend her mercy upon what terms She pleases, and may annex to Her bounty a condition either precedent, or subsequent; but the Governor of a Colony can only pardon within the terms of the authority which is delegated to him, and therefore, in the absence of Special Instructions from the Secretary of State, a pardon granted by the Governor of Hongkong to a criminal upon conditions of branding and deportation, and of his being flogged in case of his return to the Colony, is not a pardon "subject to lawful conditions" within the meaning of Article XXIX of the Governor's Instructions, and is, in my opinion, illegal, whether the criminal assents to it or not.
23rd May, 1870.
JULIAN PAUNCEFOTE, Attorney General.
THE COLONIAL Secretary to the Superintendent of Victoria Gaol.
Mr. DOUGLAS must understand very clearly, that no engagements can hereafter be proposed to or made with prisoners by which they might be assumed to have submitted themselves voluntarily to branding or flogging.
Any such punishments, if legal, can only be inflicted under sentences pronounced in due course of law by the Judge or Magistrate.
25th May, 1870.
By Command,
(13)
RETURN of PERSONS who, according to the foregoing opinion of the Attorney General, were BRANDED illegally, or BRANDED and FLOGGED illegally in Hongkong.
NAME OFFENCE DATE OF SENTENCE SENTENCE DATE OF BRANDING AND DEPORTATION DATE OF FLOGGING Lee A-cheong Kidnapping 20th Oct., 1866 9th Nov., 1866 Low A-ping Rogue and Vagabond 1st Nov., 14th Nov., Wong A-soy Larceny from the Person 27th Feb., 1865 22nd Nov.,J. GARDINER AUSTIN, Colonial Secretary