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13808.

PUBLIC RECORD OFFICE

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Reference :-

6

MMC.O. 885

11 PUBLIC RECORD OFFICE, LONDON

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

MY LORD,

No. 880.

(TRINIDAD.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, December 26, 1873. We are honoured with your Lordship's commands, signified in Mr. Holland's letter of the 17th instant, stating that he was directed by your Lordship to request our opinion on the following point, which had risen with regard to conditional pardons granted in Trinidad.

1. Trinidad was acquired by conquest in 1797. The foundation of the law of the Colony was the old law of Spain, and neither the general English common law nor statute law was in force in the Colony, excepting so far as it might have been adopted by local enactment.

2. That in a report recently received from the Governor it is stated that the longest term of imprisonment known to the criminal statute law of the Colony as a substantive punishment was 15 years' imprisonment. But it appeared from the same report that there were certain men confined in the prisons of the Colony for life, being men who having been condemned to death had had their sentences commuted to imprisonment for life.

3. That the prerogative of granting pardons in Trinidad, either free or subject to lawful "conditions," had been delegated to the present Governor by the 10th section of Her Majesty's commission, bearing date the 6th of August 1870, a copy of which was annexed, and similar provision had been made in all previous commissions.

4. That it was assumed that in these cases the commutation of sentence had been effected by way of a conditional pardon, tacitly if not expressly assented to by the convict, which, in the absence of special statutory enactment, would, it was conceived, be the only manner in which a convict could be compelled to undergo a sentence differing from that to which he had been sentenced; upon that point he, Mr. Holland, was to refer us to the opinions of the Law Officers, which were recited in Mr. Forsyth's cases and opinions of Constitutional Law, 461-3, but of which copies were annexed for reference.

5. But assuming that the commutation had been effected by a conditional pardon, the question had been raised whether in annexing, as a condition to the granting of these pardons, the endurance of a punishment unknown to the law of the Colony the Governor had validly exercised the power vested in him by his commission.

6. That in reference to that point he (Mr. Holland) was to refer us to the reports of the Law Officers of the Crown of the dates noted in the margin of his letter, copies of which were annexed, on somewhat similar points which had arisen in other Colonies, and that he was to request us to report to your Lordship-

First. Whether, taking the criminal statute law of Trinidad to be as stated, it was lawful for the Governor of Trinidad to annex, as a condition of pardoning a criminal condemned to death, the endurance of imprisonment for life, being a punishment longer than the maximum term of imprisonment affixed by the law of the Colony to

offence.

any. Whether, assuming such conditional pardon to be unlawful, a criminal who had

accepted it and who was now in prison, but had not been imprisoned for 15 years, could be detained until the expiry of 15 years, or if there was an alternative term of imprisonment attached to the offence of which he was convicted, until the expiry of such alternative term.

3. Whether, assuming that the criminal could not lawfully be so detained, it was open to the Governor to regard the conditional pardon as null and void, and the original sentence of death as still in force, and to offer the criminal as a condition of pardon the endurance of a term of imprisonment which, together with what he might have already undergone, should not exceed 15 years, or where there was an alternative term of imprisonment, should not exceed such alternative term.

In obedience to your Lordship's commands we have the honour to

Report

That no copy of the Governor's commission is sent to us.

We therefore for the

purposes of this opinion assume that it is sufficiently comprehensive to justify his dealing with the matter in question.

Q 16278.-883.

25.-5/86.

#6

"

We also assume that there

The general principle is stated by Hawkin's P. C. 237," it seems agreed that the

no general law in Trinidad limiting sentences. King may extend his mercy on what terms he pleases, and consequently may annex to his pardon any condition he thinks fit," has been long accepted as law, see also 1 Chitty Criminal Law, 773-4, who lays down the following propositions: "a pardon may be "extended to the subject on any condition which His Majesty thinks fit to annex. whether precedent or subsequent, on the performance of which the validity of the pardon will depend. And this prerogative is daily exerted in the pardon of felons on condition of being confined to hard labour for a stated time or of transportation "to some foreign country for life or for a term of years, such transportation being allowed by the Act of Habeas Corpus and subsequent Acts, and if he does "not perform the condition of the pardon it will be altogether void, and he may be

brought to the bar and remanded to suffer the original sentence.” Abridgment (Pardon).

See also Bacon's

#

44

We are therefore of opinion that :-,

(1.) The condition in question might be lawfully annexed to the pardon of a convict under sentence of death, with his consent expressed or tacit.

(2 and 3.) As we consider that the condition is lawful and attaches itself to the sentence which has been actually passed, we are of opinion no question of alternative sentences or the term to which such sentences are limited legally affects the condition, though the fact that such sentences have been prescribed as alternative may properly be taken into account as a matter of policy in apportioning the term of imprisonment. For the same reason the assumed maximum of 15 years has no application to the case. Our opinion is that where sentence of death has been passed the conditional pardon is in the discretion of the pardoning authority, assuming the punishment not to be in violation of any known principle of law.

The Right Hon. the Earl of Kimberley,

&o.

&c,

to.

We have, &c. (Signed) HENRY JAMES.

W. V. HARCOURT.

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