ན་བ ོ་ད་་ ་་
PUBLIC RECORD OFFICE
Reference :-
LLC.O.8
זון ודי
885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
3 PUBLIC RECORD OFFICE, LONDON
No. 22.
Pardon, conditional.
30
has been favoured, containing observations on this document, in case the references to authorities contained therein should assist our researches.
In obedience to Earl Grey's directions, we have the honour to report that we have taken into consideration the various documents relating to this subject, and are clearly of opinion that the position laid down by the Chief Justice is not correct in point of law, and that, therefore, in the Island of Tobago, the Provost Marshal is bound to release prisoners sentenced by a Court of competent juris- diction, upon presentation of the Queen's charter of pardon, and that such charter need not be produced before and allowed in this Court.
Herinan Merivale, Esq.,
&c. &c.
&c.
We are, &c. (Signed) JOHN JERVIS.
BARBADOS.
No. 22.
JOHN ROMILLY.
COPY of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to the Duke of NEWCASTLE.
MY LORD DUKE,
Temple, February 16, 1853.
WE were honoured with your commands contained in Mr. Merivale's letter may be granted by of the 9th instant, in which he stated that he was directed by your Grace to Colony in virtue of request that we would favour you with an answer to the following question :-
Governor of a
the general power
to pardon conveyed
by his Commission.
No. 29.
Commutation of sentence from transportation to imprisonment, by Criminal Court, illega'.
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 pardon's 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.
We have, &c. (Signed)
His Grace the Duke of Newcastle,
&c.
&c.
&c.
No. 23.
A. E. COCKBURN. RICHARD BETHELL.
COPY of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to the Duke of NEWCASTLE.
MY LORD DUKE,
Temple, May 3, 1854.
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 Wm. IV, cap. 9, sec. 9), and also of a further despatch enclosing a letter addressed to your Grace by the counsel for the prisoner, in his behalf.
31
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 of the sentence of transportation to impri- sonment for nine years is illegal.
The Crown has no power, except when such a power is expressly given by Act of Parliament, to commute a sentence passed by a Court of Justice. Practi- cally, indeed, commutation of punishment has long taken place under the form of conditional pardons. For, the Crown, having by the prerogative the power to 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 settle. ment 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 corre- sponding 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,
&c.
&c.
SID,
&c.
We have, &c. (Signed)
No. 24.
A. E. COCKBURN. RICHARD BETHELL.
COPY of a LETTER from the ATTORNEY and SOLICITOR-GENERAL to Sir G. Gugy,
Temple, July 5, 1854.
No. 24,
WF were honoured with his Grace the Duke of Newcastle's commands, But original sen- contained in Mr. Merivale's letter of the 12th ultimo, in which he stated that tence may be car.
with reference to our letter of the 3rd of May last, wherein we reported that the ried into execution. 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 in effect.
We have, &c. (Signed)
A. É. COCKBURN. RICHARD BETHELL..
The Right Hon. Sir G. Grey, Bart..
&c.
&c.
&c.
I