CO885-(15-16) — Page 238

43073

PUBLIC RECORD OFFICE

Reference :-

C.O. 885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

15 PUBLIC RECORD OFFICE, LONDON

SIR,

No. 166.

(NATAL. CAPE.)

LAW OFFICERS to COLONIAL OFFICE.

[Exercise of the Crown's Prerogative of Mercy in Treason Cases.]

Royal Courts of Justice, October 16, 1902.

We were honoured with your commands signified to us by Mr. Graham in his letter of the 24th September last, stating that he was directed by you to lay before us a copy of certain extracts from a confidential despatch of the 16th August from the Governor of Natal, and to ask for our report upon the subject of the exercise of the Crown's prerogative of mercy in cases of treason in that Colony and also in Cape Colony.

That the exercise of this prerogative was regulated in Natal by Clause IX. of the Letters Patent of the 20th of July, 1893, and Clause IX. of the Royal Instructions of

even date.

That with regard to the question raised by the Governor it would appear that the passage in Todd's "Parliamentary Government in the British Colonics" to which he referred was the following :-" An Amnesty or pardon may thus be granted. by a Colonial Governor acting under instructions from the Crown."

"

That he was to observe that Clause IX, of the Letters Patent of the 20th of July, 1893, would appear to constitute standing instructions to the Governor as to the grant of pardons; that the word Crime in the first line thereof in the absence of any words limiting its meaning would appear to include "treason as well as felony and misdemeanour; that the clause empowered the Governor in general terms to pardon "any offender convicted in any Court," and would therefore appear to amount to a complete delegation to the Governor of the Crown's prerogative of mercy ; and if the above was the proper construc- tion of the Letters Patent it would appear to follow that the Governor required no special instructions from the Crown as to the grant of pardon in a case of treason.

That in this connection he was to draw our attention to the statement made by His Majesty's Government, that the treatment of Cape and Natal Colonists who had been in rebellion would be determined by the Colonial Governments.

That assuming the above construction of Clause IX. of the Letters Patent to be correct, the exercise by the Governor of the Crown's prerogative of mercy would appear to be regulated only by such Instructions as were referred to in Clause III. of the Letters l'atent.

That the existing Instructions upon this subject were contained in Clause IX. of the Royal Instructions of the 20th July, 1893, which regulated the exercise of the prerogative of mercy in Capital Cases only, and Clause VII. of the same, which directed the Governor to take the advice of the Executive Council "in the execution of all other powers and authorities vested in him" (ie., in all powers and authorities other than those vested in him as Supreme Chief of the Natives).

That he was to point out that the provisions of the Cape Letters Patent of the 26th February, 1877 (Clause VIII.), and Royal Instructions of even date (Clause XIV.) were substantially, although not verbally, the same as those of the Natal Letters Patent ((lause LX.) und Royal Instructions (Clause IX.) already referred to, and to state that, in view of the present condition of political affairs in Cape Colony, it was important to ascertain what, under the existing Letters Patens and Royal Instructions, were the respective powers of the Governor and his Ministers both in that Colony and in Natal with regard to the grant of pardons in cases of treason in which a sentence of death had not been pronouneed.

That in this connection he was to draw our attention to Chuses VII, and VIII, of the Cape Royal Instructions, the provisions of which as to the Governor consulting his Executive Council appeared to differ considerably from those of Clause VII, of the Natal Royal Instructions already referred to.

That under these clauses it would appear that the Governor of Cape Colony was empowered, in a case in which a capital sentence had not been pronounced, either to exercise the power of pardon without consulting his Ministers or to refuse to exercise

12775-25—16 [902 WE 2757 DAS