CO885-(10-11) — Page 530

PUBLIC RECORD OFFICE

Reference :-

MC.O.7885

11 PUBLIC RECORD OFFICE, LONDON

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

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nature so barbarous or unjust as to merit punishment, would be justified in with- holding the certificate required by the 3rd section of the Act?

5. If a certificate is withheld, is it competent to an accused person to show that the act was really done under authority or in order to suppress the rebellion, and thus to take the benefit of the let or 2nd olayses of the Aat?

6. Would these clauses cover the case of a person acting under general orders for the suppression of the insurrection, but who, from malice, or passion, or otherwise, exceeded those orders, as by putting a prisoner to death without trial (This question being asked with special reference to the case of one Marshall, alleged to have been hanged by order of the provost marshal, not having been condemned to that punish- ment.)

7. In the absence of the certificate would the first and second clauses be available for the protection either of the Governor or of any subordinate officer, without proof, either that the illegal act was done bond fide to suppress the insurrection, or (in the case of a subordinate officer) that it was done under the authority of the Governor!

8. In either of these cases would the sufficiency of the defence be affected by

? showing that the act was reckless, passionate, or unnecessary

9. In what form will the Act be available for the purpose of preventing a trial, of securing an acquittal, or of arresting judgment?

II. Sir Frederic Rogers also requested our opinion, secondly, supposing the Ast disallowed, on the following further questions:-

1. a. Would the Governor be liable to a civil action or criminal prosecution for any illegal not done by him beyond the limits of martial law, or for illegal sota done by military officers within the limits of martial law with his concurrence or authority, supposing he could show that the illegal acta were necessary for suppressing the insurrection?

b. Supposing he could show a bond fide purpose of suppressing the insurrection or maintaining the public peace, but not a real necessity?

2. In particular, and in reference to the case of Mr. Gordon, supposing a person arrested by the civil authorities on suspicion beyond the limits of martial law and carried by them within those limits, and there tried, condemned, and executed for offences committed before the proclamation of martial law, and on testimony which does not justify such conviction according to recognised rules of evidence, would any of the following persons, be open to a prosecution for murder or manslaughter:-

The civil authorities who arrested the accused person and transported him within the limits of martial law?

The members of the court-martial who convicted him?

The military officer who confirmed the sentence?

The Governor who approved the sentence, and who, having power to arrest the execution, permitted it to take place?

The officer in command who ordered, and the subordinate officer who carried into effect, the execution of the sentence?

(Sir Frederic further stated that the Governor was, by his commission, Commander. in-Chief, and requested our attention on that point to the 7th and following articles of the Colonial Regulations.)

3. In the case, of the Governor, to what extent would the plea that he in good faith believed the trial and execution of Gordon necessary for the preservation of the peace be available, either before the jury or in arrest of sentence?

Sir Frederic Rogers further, lastly, with reference to the enclosed copy of a cor- respondence respecting an Indemnity Act recently passed in the Island of Saint Vincent, requested that we would advise what would be the effect, in respect of the above persons, of substituting for the Indemnity Law passed by the Legislature of Jamaica the form of Indemnity Law ultimately passed by the Legislature of Saint Vincent, which appear to require as a condition of indemnity that the illegal acts should be shown or certified by the Governor to have been done bond fide necessarily and properly, in furtherance and execution of the object for which martial law was proclaimed?

In obedience to the commands contained in the said letter, we have taken the questions submitted to us into our consideration, and have the honour to

* Question No. 4 is apparently omitted.

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Report

I. 1. That we are of opinion that it was competent to the Governor and legislative bodies of the Colony to pass an Act giving indemnity to the Governor; and that no additional validity would be given to such an Act (if required to be given) by the confirmation of the Crown, or the suggested Order in Council.

2. We answer the second question generally in the affirmative, subject to a doubt entertained by the Solicitor General, whether the Act would supply a defence to such a charge as that of murder which is a malum in ae, and an offence against the Imperial law.

The Attorney General thinks that murder committed in the Colony is a local offence governed by local and not by Imperial law.

3. The Governor is bound to grant the certificate to the subordinate officer, in respect of acts done bona fide, and within the scope of the authority conferred upon We should conceive that if an Act were "in its nature the subordinate officer. "barbarous and unjust," that would go far to show, either that it was not done boná fide, or that it was not within the scope of the authority conferred.

5. We are of opinion that this is competent to an accused person.

6. We are of opinion that the clauses referred to would not cover an excess of orders, from malice or passion, or the putting to death a person without trial, unless in self defence or in circumstances of imminent danger, or actual or apprehended conflict.

7. In these cases proof would be required to justify acts prima facie illegal.

8. We think that the sufficiency of the defence might be so affected according to the circumstances of the case.

9. The Act would not be available for the purpose of preventing a trial, or in arrest

of judgment, but would be available as a defence at a trial; we incline to think that in order to be available, it should be specially pleaded, but this is a question of criminal pleading which we do not regard as altogether free from doubt.

II. 1. a and b. If the Acts to which this question relates were done within the local limits within which martial law was proclaimed, we conceive that if they were necessary for suppressing the rebellion or done bond fide for that purpose, they cannot properly be termed "illegal acts."

"

With respect to acts done without those local limits, we have to observe that inasmuch as it was competent to the Governor, with the advice of his Council, to pro- olaim martial law in any district where it might be required, it appears difficult to in districts where it was not proclaimed. Should, indeed, any justify illegal acts unforeseen emergency, such as an actual armed insurrection, have made it necessary to resort to such acts in any district before martial law could have been there pro- claimed we think that such acts might be justified.

2. We think it necessary to distinguish between the different classes of persons to We do not conceive that the civil authorities who merely whom this question refers. obeyed an order of the Governor for the arrest of the accused person, and his convey- ance to the district within which martial law was proclaimed would be liable to a prosecution for murder or manslaughter.

The case of the Governor who ordered the arrest and removal, who set the court- martial in motion, and who authorised the execution of the sentence is different, and is one, as far as we know, governed by no precedent or authority. After giving this subject very careful consideration, we are apprehensive that the Governor may be liable to an indictment for murder.

Assuming that the military officers who were concerned in the trial and execution of Gordon, were aware of the circumstances under which he was arrested, we find it difficult to distinguish the case against them from that against the Governor.

3. We do not think that this defence would be available at the trial, or in arrest

of judgment, although it would be a material consideration for the Crown in the exercise of its prerogative of mercy.

4. We do not think that the indemnifying effect of the Act should be subject to the condition suggested.

We have, &c.

(Signed)

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

&c.

&c.

&c.

* Question No. 4 is apparently omitted.

ROUNDELL PALMER. R. P. COLLIER.

J