CO885-(10-11) — Page 94

PUBLIC RECORD OFFICE

C.O. 885

Reference :-

10PUBLIC RECORD OFFICE, LONDON

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

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we humbly state to your Grace that, in our opinion, the course proposed to be adopted is open to grave objection.

His Grace the Duke of Newcastle.

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We have, &c. (Signed)

RICHARD BETHELL. WILLIAM ATHERTON.

5926.

MY LORD DUKE,

No. 70.

(BARBADOS.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, June 25, 1861. We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 24th of January last, in which he stated that your Grace had received our joint opinion, dated the 8th instant (January), respecting the construction of certain Barbados Customs Acts, and the mode of enforcing them.

Sir Frederic Rogers was also pleased to say that in the case of one of these Acts (No. 330, section 1) certain articles were declared to be forfeited to Her Majesty, Her heirs and successors, but it was afterwards (section 2) provided that of the proceeds of the forfeiture one third should go to the informer, one third to the seizing officer, and that one third "should be paid into the public Treasury for the use of the Island.'

Sir Frederic Rogers was also pleased to state that in our opinion the Crown had not the power of remitting even that part of the forfeiture which was ultimately payable to the Colonial Treasury.

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It was the general practice in the case of Colonial Acts to require that fines and forfeitures should be reserved, in the following or some equivalent terms, "to Her "Majesty, Her heirs and successors, for the public uses of the Colony, and for the "support of the Government thereof."

No doubt had ever been entertained but that fines due under Acts thus worded were remissible by Her Majesty, and they had constantly been remitted accordingly.

Sir Frederic Rogers was pleased to say that as our opinion of the 8th instant might be calculated to throw some doubt on the effect of the numerous laws which were thus framed, he was directed to request that we would inform your Grace whether, in our opinion, the Crown might authorise the Governor of a Colony to remit fines which were appropriated by law to Her Majesty, Her heirs and successors, for the public uses of· "the Colony," or "to Her Majesty, &c. for the public uses of the Colony, and for the "support of the Government thereof."

your

Sir Frederic Rogers also stated that in case we should be of opinion that that form of enactment did destroy Her Majesty's right of pardon, he was to request us to inform Grace what course we should think it advisable to pursue in order to remedy a state of things so pregnant with inconvenience, and particularly whether it would be advisable to issue a circular to the Colonial Governors stating the doubts which had been entertained, and directing each Governor to use his influence to procure the passing of a law declaring the Crown's right to remit any fine or forfeiture, so far as such fine, or the proceeds of such forfeiture, might be payable to the Colonial Treasury.

In obedience to your Grace's commands we have taken the same into our considera- tion and have the honour to

Report

That by the common law all fines, penalties, and forfeitures belong to the Crown, and are receivable by the Crown for its personal use and the maintenance of its dignity.

But fines or penalties directed by statute (as in the case of these Colonial Acts) to be paid to the Crown "for the public uses of the Colony," or "for the support of the Government thereof," are impressed with a public trust and cannot be considered as pure droits of the Crown.

Constitutionally, therefore, the Crown cannot remit them, because they are appro- priated by statute.

The Crown may abstain from suing for them where the fine or penalty is recoverable only by process in the name of the Attorney General, but it cannot by direct release, or by the operation of a pardon, legally remit the fine or penalty where it has once attached or been imposed, and by law has become leviable or payable.

The form of enactment in these cases was perhaps suggested by the desire of pre- venting fines levied in the Colonies being applied for the support of the Crown in the United Kingdom, but the consequential operation on the ordinary prerogative powers of pardon in the Crown does not appear to have been observed.

0 16978.-305. 15.-9/66.

• No. 49.

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The only course that can be taken seems to be to pass in each Colony having a Legislature a short declaratory Act that the existing enactments shall not interfere with the ordinary powers in the Crown of pardoning offences and remitting fines and penalties.

His Grace the Duke of Newcastle, K.G.

&c.

&c.

&c.

We have, &c.

(Signed)

RICHARD BETHELL. WM. ATHERTON.

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