CO885-(10-11) — Page 125

11525.

PUBLIC

OFFICE

MY LORD DUKE,

No. 97.

(NATAL.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, December 24, 1861. We were honoured with your Grace's commande signified in Mr. Elliot's letter of the 14th December instant, in which he stated that he was directed by your Grace to transmit to us copy of an Ordinance passed by the Legislature of Natal, and entitled No. 10 of 1861 "to make further provision in respect of the substitution of "declarations for oaths in certain cases."

Mr. Elliot was also pleased to say that this law was described by the Lieutenant- Governor as an amendment or amplification of No. 17 of 1859 and No. 6 of 1860, copies of which he enclosed, and requested that we would take these documents into our consideration, and favour your Grace with our opinion whether Her Majesty can properly be advised to confirm the Ordinance No. 10 of 1861, and if not, to what extent the affirmation of savages and other persons described in s. 2 of the Ordinance No. 6 of 1860 can properly be allowed to have the legal effect of an oath.

In obedience to your Grace's commands we have taken the documents submitted to us into our consideration, and have the honour to

Report

That we do not perceive any substantial objection to the Ordinance No. 10, 1861. The object is clear, namely, to extend the provisions of s. 4 of the law of 1859, and 8.2 of the law of 1860, to declarations not made for the purpose of giving evidence in courts of justice, as, for example, in swearing jurors, or criers, or bailiffs, and (we suppose) in the making of affidavits, and the like, out of court; but we feel some difficulty as to the language of the proviso to each of the ss. 1 and 2 of the Law No. 10, 1861, which is particularly submitted to our consideration. The provisoes appear to us to be, in themselves, substantive enactments, carrying the law a great deal further than it is carried by the sections to which such so-called provisions are appended. We are apprehensive that as they stand they might subject persons to the penal consequences of the crime of perjury who might have made purely voluntary statements under sanction of the declaration, such statements being made neither in the course of any judicial proceeding, nor under any other circumstances rendering Some explanation legal any statement on oath, or on declaration substituted for oath. on this head ought, in our opinion, to be required, before Her Majesty can be advised to confirm the Ordinance.

Supposing the Crown not to be advised to confirm the Ordinance of 1861, we see no objection to allowing the affirmation of savages and other persons described in s. 2 of the law of 1860, to have the legal effect of an oath. Such declaration can only be substituted for an oath by permission of the court; who, it must be presumed, would not sanction such substitution except in the case intended to be provided for, of barbarians utterly uncivilised, and without such knowledge or belief as could lay the foundation for a religious sanction.

His Grace the Duke of Newcastle, K.G.,

&c.

&c.

&c.

We have, &c. (Signed) WM. ATHERTON.

ROUNDELL PALMER.

0

16975.-26.

25.-2/86.

Reference

C.O. 885

10

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