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PUBLIC RECORD OFFICE, LONDON

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SIR,

No. 345.

(BRITISH GUIANA.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, June 7, 1865.

We are honoured with your commands, signified in Sir Frederic Rogers' letter of the 6th May ultimo, stating that he was directed by you to request our opinion upon certain questions which have arisen in British Guiana.

The 37th clause of the Ordinance No. 27 of 1846 (of which a copy was annexed) invests the Supreme Court with powers of gaol delivery.

The 1st clause of the Ordinance No. 1 of 1856 (of which a copy was annexed) requires the keepers of gaols to furnish the court with lists of the persons in custody, whether under sentence or before trial, and to produce the persons of those on whom judgment has not been pronounced.

A resolution of the Court of Policy (referred to in the 4th paragraph of the Attorney General's of 22nd November 1864, of which, and of the covering Despatch from the Governor, 182 of 23rd November, copies were annexed) passed for purposes uncon. ordinary nected with gaol delivery, declared a certain penal settlement to be an

prison."

The Chief Justice alleges, but the Government deny, that this penal settlement is thus brought within the meaning of the 1st clause of the Ordinance No. 11 of 1856.

But as it never was intended in fact, and is not desired, that the penal settlement should be brought within the range of this enactment, it has been thought best to. Bettle the question by legislation; and the Court of Policy has accordingly passed an Ordinance No. 3 of 1865 (enclosed in the Governor's Despatch No. 40 of the 7th March, of which, and of another Despatch No. 54 of 23rd March 1865, with their enclosures, copies were annexed) repeating inter alia the Ordinance No. 11 of 1856, and making it clear that the power of gaol delivery and of requiring returns of prisoners does not extend to prisoners upon whom sentence has [not] been passed.

Sir Frederic Rogers was also pleased to state that the first question on which you desire our opinion is whether Her Majesty can properly be advised to confirm this Ordinance?

The second question is whether the commutation of certain capital sentences has been lawfully effected?

The Governor of British Guiana is empowered to pardon offenders by the 5th clause of his Commission, which runs as follows:-

"And we do hereby authorise and empower you, as you shall see occasion, in our name and on our behalf, to grant to any offender convicted of any crime in any court, or before any judge, justice, or magistrate, within our said Colony a free and uncon- ditional pardon, or a pardon subject to such conditions as by any law in force in the said Colony may be thereunto annexed, or any respite of the execution of any such offender, for such period as to you may seem meet, and to remit any fines, penalties, or forfeitures which may accrue or become payable to us."

The 74th section of the British Guiana Ordinance No. 27 of 1846 makes the following provision:-

"And be it enacted, that when any person shall be convicted in the Supreme Court of Criminal Justice of any crime punishable by death, if Her Majesty shall be pleased to extend her royal mercy to any such offenders upon condition of transportation, or upon condition of imprisonment or of imprisonment with hard labour, and such inten- tion of mercy shall be signified by the Governor to the said court during any session thereof, such court shall allow such offender the benefit of a conditional pardon, and make an order for the transportation or imprisonment, with or without hard labour, as the case may be, of such offender, and in case such intention of mercy shaif-be 80 signified to the chief justice at any time when such court is not in session, such chief justice shall allow to such offender the benefit of a conditional pardon, and make an order for the transportation or imprisonment of such offender in the same manner as if such intention of mercy had been signified to the court during the session at which such offender was convicted, and such allowance and order shall be considered as an allowance and order made by the court, and shall be entered upon the records of the said court by the registrar, and shall be as effectual to all intents and purposes as if

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such allowances had been made by the court during the continuance of the same session, and every such order shall subject the offender to be so transported or imprisoned."

The course pursued, at least in certain cases, in giving effect to this provision is described as follows by the Attorney General of the Colony

"In each case the royal mercy was extended by the Governor for the time being to the prisoner upon condition of his being imprisoned with hard labour for life, and such intention of meroy was signified to the presiding judge by letter from the Government Secretary written by the Governor's direction in the ordinary course of official communication."

It is also referred to by the Governor as follows:-

"The main point at issue is whether an official letter addressed to the judge by the Government Secretary, signifying to him the Governor's intention to commute, is a signification within the meaning of section 74 of Ordinance 27 of 1846? The mode adopted in England, I believe, is by a letter from the Secretary of State for the Home Department to the judge of assize. The Chief Justice maintains that this is not a legal signification, though no form is prescribed in the Ordinance. The pardon itself, which is signed by the Governor, and under the public seal, has of late years been addressed direct to the sheriff instead of to the clerk of the court, by whom Mr. Beaumont holds that it should be communicated to the sheriff after the commutation of the sentence on the records of the court. The Attorney General maintains that the record can be made up at any time, and that the English practice is only to make it up in cases of necessity."

The Chief Justice (Mr. Beaumont) thus appears to have raised a question whether the mode of commutation is correct, considering, apparently, that the pardon, instead of being communicated to the sheriff, should have been communicated to the clerk of the court and regularly "allowed" upon the records of the court.

Since these objections were raised the Governor appears to have done all in his power to cure the alleged defect with regard to the pardons which he has himself given by procuring the allowance of his pardon by the Supreme Court.

The pardons given before the present Governor acceded to office are not apparently

many.

Sir Frederic Rogers was also further pleased to state that under the circumstances you had to request our perusal of the accompanying papers, and also our opinion, as

Chief Justice far as we can judge from them

Beamont,

1. Whether the convicts who received conditional pardons from Governor Hincks'

Oct. 3, 1864. predecessor are in legal custody?

Gov. 14;

8 March

1865, and

enclosures.

•

2. Whether the convicts who received conditional pardons from Governor Hincks are in legal custody?

3. Whether any, and if so what, alterations ought to be made in the 74th clause of the British Guiana Ordinance No. 27 of 1846?

4. If the convicts are not in legal custody, whether it would be proper and allowable to pass an Ordinance to cure retrospectively any defects in the commutation of their capital sentences; or whether, by any other preferable method, their confinement can. be legalized?

5. And generally, what course the local Government ought to pursue in this matter? and that the question is of importance, as the Chief Justice has published in the Colony certain speeches, in which he has expressed the opinion that the commutations were illegal.

In obedience to your commands we have taken these papers into our consideration. and have the honour to

Report

That we are of opinion that Her Majesty may be properly advised to confirm the Ordinance No. 3 of 1865.

With respect to the other questions, we have to observe

1 and 2. That the 74th section of the British Guiana Ordinance No. 27 of 1846 provides that, on the Queen's mercy being extended to a convict conditionally, "such No form "intention of mercy shall be signified by the Governor to the said court.” in which such signification should be made being prescribed, we are of opinion that an official letter, addressed to the judge by the Government secretary, informing him of the commutation of the sentence, is a sufficient " signification" within the meaning of the Ordinance. Upon such signification being made, it is the duty of the court to make an order for the transportation or imprisonment with hard labour (as the case

"

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may be) of the offender, and to make an entry upon the record, which may be in the form suggested by the Colonial Attorney General. We understand this to be the form of "signifying the intention of meroy adopted both by the late and the present Governor; if so, we think that they have properly performed the duty cast upon them, and if the court has thereupon made orders for the transportation or imprisonment with hard labour of offenders that those orders are valid and that the prisoners are in legal custody. The proper entry should be made on the record in all such cases, if it has not been made already, but the omission to make it does not render illegal the custody of the prisoners. If the courts have in any instances neglected to make such orders we think that the prisoners have nevertheless been in legal custody under their original sentences (although the subjecting them to hard labour would be illegal), and if the courts will make the proper orders now we do not apprehend that any practical difficulties will arise.

3, 4, and 5. We see no sufficient reason for altering the Ordinance referred to or passing a new Ordinance. The law, as it stands, does not appear to us to be attended with any serious difficulty in its interpretation or execution, if the judges do their duty.

We have, &c. (Signed) ROUNDELL PALMER.

R. P. COLLIER.

The Right Hon. Edward Cardwell, M.P.,

&c.

&c.

&c.