22801.
No. 24.
(BAHAMAS)
LAW OFFICERS to TREASURY.
CHIEF JUSTICE OF THE BAHAMAS (3 & 4 Will. 4. c. 41. s. 4.).
CASE.
PUBLIC RECORD OFFICE
Reference :-
ITELEC.O. 885
| | | | | | | | | | |
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO |
LONDON: PRINTED FOR HER MAJESTY'S STATIONERY OFFICE BY DARLING & SON, LTD., 1-3, GREAT ST. THOMAS APOSTLE, EC.
INOM.
The papers sent herewith are forwarded to the Attorney and Solicitor-General pursuance of the directions conveyed to the Treasury Solicitor by the letter from the Colonial Office of which the fellowing is a copy :-
SIR,
I AM directed by the Marquess of Ripon to acknowledge the receipt of your
Downing Street, November 16, 1892. letter of the 5th instant, enclosing the drafts of a letter to the Lord President of the Council, and of a Case with an Committee of the Privy Council, on the questions arising out of the imprisonment of Appendix thereto, to be submitted to the Judicial Mr. Moseley by the Chief Justice of the Bahamas, for alleged contempt of Court, and his release by the order of the Governor of the Colony.
Lord Ripon thinks it desirable that the Case should be settled by the Law Officers
of the Crown, and I am accordingly to request it may be referred to them.
I am to add that it is understood that it is probable that a Council will be held in
the course of next week, and that it is very important that the order of reference to
the Judicial Committee should be made at that Council.
I return the draft letter and Case and Appendix, and also, for reference, the docu- ments previously sent to you and returned with your letter of the 5th instant, and the jist of them which accompanied that letter.
The Solicitor to the Treasury.
I am, &c.
(Signed) EDWARD WINGFIELD.
P.S.--The enclosed letter* from Mr. Yelverton, to whom a copy of the draft state- ment was communicated on the 9th instant, has been received, and I am to request that it may be laid before the Law Officers, but I am to add that Lord Ripon cannot consent to the omission from the reference to the Judicial Committee of the questions to which Mr. Yelverton objects, as his Lordship has been advised by the Lord Chancellor that they should be submitted to the Judicial Committee.
The following letters of the 8th September and 31st October from the Colonial Office to the Treasury, state shortly the wishes of the Secretary of State as to the matters which he desires to be referred to the Privy Council :—
Downing Street, September 8, 1892.
SIR,
I AM directed by the Marquess of Ripon to state, for the information of the Lords Commissioners of the Treasury, that an important question affecting the pre- rogative of the Crown and its exercise by the governors of Colonies, has been raised in connexion with a recent occurrence in the Colony of the Bahamas.
2. In May last the Chief Justice of the Bahamas committed the editor of a news- paper to prison during his pleasure, for alleged contempt of court in publishing a letter containing personal remarks upon him, and in refusing to divulge the name of the writer.
3. The Governor having inquired by telegram of the Secretary of State whether he had power to release the prisoner, and having received a reply in the affirmative, ordered his release.
4. The Chief Justice has protested against the action of the Governor as illegal and improper, and the person who was imprisoned has appealed to the Secretary of State for redress, for what he 'alleges to be an abuse of judicial authority by the Chief Justice, in punishing him for an act which he contends was not a contempt of court.
0 70451--40. 25.-12/92.
• Copy sent herewith.
Page 300Page 301
NEPERT
PUBLIC RECORD OFFICE
Reference :-
C.O.8
885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- |COPYRIGHT PHOTOGRAPH-NUI TUI
C. O. to Trea-
sury, 8 Sept. 1892.
Treasury Sol
vitor to C.,
10 Sept. 1892. C. to Trea-
sury Solicitor,
17 Sept. 1898.
(0. Tres
sury Solicitor,
22 Sept. 1892.
5. The matter was referred to the late Law Officers of the Crown, who reported that in their opinion neither the publication of the letter nor the refusal to give up the name of the writer amounted to a contempt of court, that it was within the pre- rogative of the Crown to pardon for the alleged offence, and that in their opinion the prerogative was rightly exercised.
6. Lord Ripon considers (and the Lord Chancellor, whom he has consulted, concurs in his opinion) that the question raised by the Chief Justice, being one of general importance, should be referred to the Judicial Committee of the Privy Council, and he proposes that at the same time the J.dicial Committee should be asked to advise whether the Chief Justice was justified in ordering the imprisonment of the editor, and, if not, whether he should be removed from his office.
7. I am, therefore, to request that you will move the Lords Commissioners to instruct the Solicitor to the Treasury to take the necessary steps for bringing the question before the Judicial Committee and for that purpose to place himself in communication with this Department.
The Secretary to the Treasury.
I am, &c.
(Signed) EDWARD WINGFIELD.
The Secretary of State has since decided, as appears from the following letter from the Colonial Office to the Treasury Solicitor, that he desires to submit to the Judicial Committee of the Privy Council the questions of law only, and not to refer any questions as to the advisability of removing the Chief Justice, or as to his and the Governor's conduct in relation to the matter, and has instructed the Treasury Solicitor to prepare a case accordingly.
SIR,
Downing Street, October 31, 1892.
11
WITH reference to the correspondence noted in the margin. I am directed by the Marquess of Ripon to inform you that he has, upon further consideration, decided that the questions to be referred to the Judicial Committee of the Privy Council in the matter of the imprisonment of the editor of the “* Justice of the Bahamas for alleged contempt of Court, and his release by the Governor
Nassau Guardian
by the Chief of the Colony, shall not include any question of the removal of the Chief Justice from his office, and I am to request that you will proceed as if the words, "and if not
whether he should be removed from his office the Treasury of the 8th of September.
had been omitted from my letter to
The Solicitor to the Treasury.
Sec. 4 of 3 & 4 Will. 4. c. 41., is as follows:--
.
T am, &c. (Signed)
EDWARD WINGFIELD.
And be it further enacted, that it shall be lawful for His Majesty to refer to the said Judicial Committee for hearing or consideration any such other matters whatsoever as His Majesty shall think fit, and such Committee shall thereupon hear or consider the same, and shall advise His Majesty thereon in manner aforesaid."
The Treasury Solicitor has not found any precedent which is precisely applicable to the reference of a question under sec. 4 of the Secretary of State, as to which there has not been a petition or representation by one of the parties concerned which would be suitable for transmission to the Privy Council.
It appears, however, to have been the practice to refer petitions or representations to which the section was considered applicable to the Privy Council, with a letter from the Secretary of State to the Lord President, requesting him to submit such petitions or representations to Her Majesty for reference to the Judicial Committee. Following the practice, which appears convenient for adoption in this case, a draft of a letter to the Lord President, and a draft statement of the case, so far as appears to he uccessary to raise the questions of law, have been prepared.
'There have been sent to the Secretary of State in this case representations by Mr. Moseley, and by a number of persons calling themselves the Citizens' Defence Com- mittee, and a statement prepared by the Chief Justice (which are sent herewith); but these documents deal to a considerable extent with questions of personal conduct, which the Secretary of State does not wish to submit to the Privy Council.
3
The Secretary of State desires that the case sent to the Privy Council should be settled by and have the approval of the Law Officers, whose observations or opinion be would desire to forward with such statement when settled.
Herewith are sent-
(1.) Draft of letter proposed to be addressed to the Lord President. (2.) Draft case.
(3.) Proposed appendix.
(4.) Other papers bearing on the matter, being-
(a) Despatch of 21 May 1892 from Governor to the Colonial Office. (b) Despatch of the 4th of June and enclosure from Mr. Moseley.
(c.) Letter from the Secretary of State to the Governor, dated 25th June
1892.
(d.) Letter from the Governor to the Secretary of State, dated 19th August
1892.
(6.) Letter from the Administrator to the Secretary of State, dated 29th August
1892, and Memorial from the Citizens' Defence Committee.
(f) Printed Statement and Memorandum sent by the Chief Justice to the
Secretary of State.
(9.) Letter addressed to the Treasury Solicitor by the Chief Justice, dated
October 22nd, 1892.
(h.) Letter from the Chief Justice to the Colonial Office commenting on the proposed case to be submitted to the Privy Council, dated 15th November 1892. (j) Print of Opinion of late Law Officers (Sir R. E. Webster and Sir E. Clarke) and Memorandum as to practice of Home Office in cases of contempt of Court.
The Attorney and Solicitor General are requested to settle the form of reference and case, and advise accordingly.
Opinion.
1. Subject to later observations we think the statement proposed to be submitted to the Privy Council is full and complete.
2. Any publication reflecting injuriously upon a judicial officer as such, calculated to bring him into contempt, is an offence which may be punished by fine- and
#
or
-imprison- ment. The question whether the letter of " Colonist was such a publication is mainly one of fact on which differences of opinion may well exist, and we do not, as to this, feel called upon to express dissent from the report of our predecessors of the 30th July 1892.*
We think the refusal to disclose the name of the writer signed “ Colonist'
1
"
was not
a contempt of Court, and that the judgment of the Chief Justice to that effect was wrong.
3. The Governor is not a viceroy, and we do not think that, as such, he can claim to exercise the prerogative of the Crown, but in our opinion, he had power to order the release under the terms of the patent creating his office of Governor (Article X.).
The Chief Justice had summarily sentenced the editor to imprisonment and fine not in furtherance of any civil rights in litigation, but under circumstances in which the contempt, if committed, could only be regarded as a criminal offence. In this connexion we suggest that the form of the third Question proposed to be submitted to the Privy Council be altered so as not to limit the Governor's power to the question of the exercise of the Queen's prerogative. We have made the necessary alterations in the draft
case.
4. It is not clear in what sense the fourth question in the proposed case is to be regarded. If it merely means, was the release lawful? it is already covered by the third question. If it means more than this it is for the Secretary of State to consider whether it is proper to ask the opinion of the Privy Council as to the propriety, or prudence, of an act done by an executive officer, which, ex-hypothesi, was within his legal powers. If it is not, the fourth question should be omitted.
5. In our instructions it is stated that the Secretary of State proposes to forward the observations or opinion of the Law Officers to the Privy Council with the case.
• No. 15.
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