CO885-(15-16) — Page 595

5260

No. 134.

PUBLIC RECORD OFFICE

Reference :-

PLLC.O.885

16 PUBLIC RECORD OFFICE, LONDON

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

豐

(UNION OF SOUTH AFRICA.)

LAW OFFICERS to COLONIAL OFFICE.

[Position of Governor-General under Clause IX. of his Instructions in respect of the commutation of sentences of prisoners sentenced on a capital charge.]

SIR,

Royal Courts of Justice,

17th February, 1911. We were honoured with the commands of the Secretary of State signified to us in Sir C. P. Lucas's letter of the 31st August last, transmitting to us the accom- panying copy of a despatch from the Governor-General of the Union of South Africa (with enclosure) raising the question of his position under Clause IX. of his Instruc- tions in respect of the commutation of sentences of prisoners sentenced on a capital charge. That Sir C. Lucas was to explain that this matter arose in connection with the case of certain Chinese labourers imported into the Transvaal under contract who were condemned to death, but whose sentences were commuted to imprison- ment with hard labour for varying terms.

That they were now in prison in the Straits Settlements, and that it was pro- posed to transfer them to Weihaiwei when accommodation was available. That Ministers had, however, advised that they should be released.

That the Secretary of State apprehended that, generally speaking, the Governor-General must, in dealing with matters affecting prisoners, be guided by the advice of his Ministers, as he was guided in other matters of administration. That he would be so guided, for example, in dealing with the cases referred to in the first paragraph of Clause IX. of his Instructions. That the second paragraph of that clause qualified the above general rule by providing that, instead of the advice of the Executive Council as a whole, the Governor must receive the advice of one Minister at least (and presumably need not receive other advice) in respect of a defined class of cases, viz., when it was a question of pardoning, granting remission to, or reprieving, an offender in a case other than a capital case. That the third paragraph of the clause introduced a further qualification in the case of an offender who shall have been condemned to death, viz., that "the Governor-General shall consult the Executive Council

shall not pardon or reprieve any such offender unless it shall appear to him expedient so to do, upon receiving the advice of the Executive Council thereon, but in all such cases he is to decide either to extend or to withhold a pardon or reprieve according to his own deliberate judgment, whether the Members of the Executive Council concur therein or otherwise'

That the Secretary of State inclined to the view that the effect of this third paragraph of Clause IX. of the Instructions was to limit the discretionary power of the Governor-General to the grant of a pardon, or reprieve, to an offender who had been condemned to suffer death, and that the true meaning of the paragraph was that the offender must be lying under sentence of death, and not have been con- demned to death some time previously, and be serving a commuted sentence. That the decision as to the action to be taken in that case was accordingly one for the Governor-General acting on the advice of his Ministers.

That the Secretary of State would, however, be obliged if we would take the papers into our consideration and would report—

(1) What was the true construction of Clause IX. of the Royal Instructions? (2) Whether the discretionary power of the Governor-General, under the third paragraph, was restricted to the pardon or reprieve of an offender under sentence of death, or whether it extended to the case of an offender originally condemned to death but reprieved and under- going a commuted sentence of imprisonment?

In obedience to the commands contained in Sir C. P. Lucas's letter we have taken

the papers into our consideration, and have the honour to

Report-

1. That Clause IX. of the Instructions is divided into three paragraphs. The first paragraph confers upon the Governor-General, as regards convicted offenders, the power to grant (a) a pardon either free or subject to any lawful condi- tions (subject to the proviso at the end of the paragraph); (b) any remission of

(19035—2.) Wt 109–396. 25. 811. D & S.

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