203.
PUBLIC RECORD OFFICE
Reference :-
C.O. 885
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- | COPYRIGHT PHOTOGRAPH—NOT TO
"
No. 49.
(BARBADOS.)
LAW OFFICERS to COLONIAL OFFICE.
Lincoln's Inn, January 8, 1861. MY LORD DUKE,
We were honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 7th of November last, in which he stated that he was directed by your Grace to request that we would favour you with our opinion on certain questions referred to in a Despatch from the Governor of Barbados, of which with its enclosures Sir Frederic Rogers transmitted a copy-which questions were:
1. Whether penalties and forfeitures incurred under either of the Acts (No. 311, the Barbados Act, "An Act to regulate the trade of this Island," and Act No. 330, for the prevention of smuggling) can either before or after judgment of the court before which they may be sued for be remitted by the Governor in part or in whole?
2. Whether in accordance with English usage the Government officer carrying on prosecutions under these two Acts can without impropriety withdraw the prosecution of the owner of a vessel for a forfeiture under Act No. 330 on condition that the master shall submit to a penalty under the Act No. 311 ?
3. Whether it is the apparent intention of the Barbados Legislature that the Attorney General or other prosecuting officer shall be entitled to exercise his own personal discretion in bringing or withdrawing prosecutions, or whether such officer is bound to adhere to the rules or instructions communicated to him from the Governor of the Colony in these respects?
In obedience to your Grace's commande we have perused the Despatch and Acts submitted to us, and have the honour to
Report
That under the provisions of the Barbados Smuggling Act the vessel in question, the "Trinidad Packet," became liable to be proceeded against, in order to a decree of forfeiture; but until decree no "forfeiture" exists; nor, of consequence, can any remission of forfeiture take place.
Should the proceedings go forward, and a decree of forfeiture be obtained, such forfeiture will, in the terms of the Barbados Act 330, be "to Her Majesty" and, had this been all, the Crown proprio vigore, and the Governor under his commission, and subject to the later instructions, might, in our opinion, have remitted the forfeiture. But the statute which in terms gives the forfeiture to the Crown, in the same breath directs how it is to be disposed of, and the Crown does not even come in for a share. The forfeiture is (or will be) throughout the creature of statute, untouched by the prerogative.
And we are of opinion, therefore, that the Governor would possess no power under his commission to remit the forfeiture if decreed.
For like reasons we are of opinion that it is not competent to the Governor to remit the whole, or any part, of the penalty of 100. imposed upon the captain of the The extent of his Excellency's smuggling vessel by the Barbados Act No. 311. commission is to remit "fines and forfeiture due unto us," the penalty in question being, in no sense, due to the Crown.
2. With reference to the proceedings against the ship under one Act, and against the captain under the other, and the compromise which, it appears, the Solicitor General of Barbados is disposed to sanction
In our opinion such arrangement is not necessarily either unreasonable or unjust. The matter It may be that the owner of the Barbados packet was perfectly innocent, but his vessel was not the less on that account liable to entire forfeiture. appears to us, therefore, to be within the discretion of the Law Officer, by whom and in whose name these public proceedings have been instituted.
And 3 generally. We think similar matters must be left to the like discretion, and
• 16978.-304. 95.-9/86.
that great inconvenience, unattended by any compensating advantages, would ensue if the Governor were himself actively to interfere.
The Crown, it will be borne in mind, has the remedy in its own hands, should this power of the Law Officer be abused.
His Grace the Duke of Newcastle, K.G.,
&c.
&c.
&c.
We have, &c.
(Signed)
RICHARD BETHELL, WM. ATHERTON.
J