CO885-(10-11) — Page 527

5163.

PUBLIC RECORD OFFICE

C.O. 885

Reference :-

11 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

2

2. If it should appear to Her Majesty's Government to be inexpedient to interfere at the present time one way or the other, in the unfortunate and embarrassing questions connected with the respective pretensions of Bishop Colenso and Bishop Gray, we think it may be proper to state to the Officer Administering the Government of Natal that Her Majesty's Government understand the effect of the judgment of the Privy Council to be as above explained, and that they think it inexpedient to use their authority for the purpose of depriving Mr. Green of any liberty which the law may allow to him with respect to his acknowledging or not acknowledging the episcopal authority of Bishop Colenso, seeing that if any questions capable of being legally determined now exist between the bishop and Mr. Green, both parties or either may pursue such remedies as they may be legally entitled to before the ordinary tribunals of the country.

We have, &c.

The Right Hon. Edward Cardwell, M.P.

!

(Signed)

ROUNDELL PALMER. R. P COLLIER. ROBERT PHILLIMORE.

SIR,

No. 412.

(BRITISH GUIANA.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, May 28, 1866. We are honoured with your commande Bignified in Mr. Elliot's letter of the 24th of May instant, stating that he was directed by you, Sir, to bring under our consideration the following case :——

On the 29th of March last an article, of which a copy was annexed, appeared in the "Colonist," a daily newspaper of British Guiana, animadverting in a very insulting and unbecoming tone on the conduct of Mr. James Crosby in his capacity of puisne judge of the Supreme Court of British Guiana.

That Mr. Laurence MacDermott, proprietor, printer, and publisher of the "Colonist," was thereupon summoned to show cause why he should not be imprisoned for contempt.

That on the 5th of April, while this case was proceeding, a second article, of which also a copy was annexed, appeared in the "Colonist" attacking Mr. Edward Charles Ross, a barrister, on whose information or delation Mr. McDermott was summoned.

That various more or less technical defences were alleged, and overruled, and Mr. McDermott was sentenced to six months' imprisonment.

Mr. Elliot was also pleased to state that he was desired by you, Sir, to request that

we would favour you with our opinion on the following points:-

1. Is the offence one which in this country would be held a contempt of court?

2. Would the punishment be considered excessive?

3. Has the Governor, on behalf of the Crown, the power of pardoning a contempt of

court? (A copy of the Governor's commission was annexed.)

4. Does an appeal against the sentence lie to the Privy Council?

5. Are there any means by which, pending such an appeal, Mr. McDermott can be released from prison?

6. Having special reference to 28 & 29 Vict. c. 63. s. 5., is the Court of Policy competent to enact, and could it properly enact, a law declaring that the Supreme Court should not have the power of punishing contempt not committed in the face of the court?

In obedience to your commands, we have taken this matter into consideration, and have the honour to

Report

That, having regard (amongst other authorities) to the doctrine laid down by Lord Hardwicke in the case of the "St. James' Evening Post" (2 Atkyns, 469), by Chief Justice Wilmot in Almon's case (Wilmot's Opinions, p. 253) by Lord Lyndhurst in Van Sandan's case (1 Phillips, 454), we are unable to say that the publication of the articles in question might not have been held in this country to be a contempt

of court.

2. We think that the punishment (if intended to be six months' imprisonment), would in this country be considered excessive. It is, however, to be observed, that the com- mitment is not for six months absolute; but for six months, or until sooner discharged by the order of the court. In this country the usual course is to make commitments for contempt indefinite, in point of duration, upon the face of the order, and to discharge the party, as soon as he applies for his release, making a proper submission, and so purging his contempt. In case of contumacy the imprisonment under such a form of order might continue more than six months, and, in the present case, it is to be presumed that Mr. McDermott might at any time obtain his release, by making a proper application and submission for that purpose, in terms satisfactory to the 3. We cannot discover in the Governor's commission any power to pardon a contempt of court.

court.

4. This order for commitment is not a sentence or order appealable in the ordinary course to the Judicial Committee of the Privy Council, but we entertain no doubt that an appeal might be brought therefrom to Her Majesty in Council, and would be enter- tained and referred to the Judicial Committee (if Mr. McDermott is advised that the

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