CO885-(15-16) — Page 596

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sentence; and (c) any respite of the execution of such sentence. The exercise of this power would be constitutionally regulated by Ministerial advice, as is pointed out in Sir C. P. Lucas's letter, and it is further qualified by the two following paragraphs, By the second paragraph in cases other than capital cases" the Governor-General must first receive the advice of one at least of his Ministers. This second paragraph. deals with (a) pardon, (b) remission, and (c) "reprieve but we think that " in the first reprieve in this paragraph has the same meaning as "respite paragraph. The third paragraph does not speak of" remission "at all, but is limited to pardon and "reprieve." It provides that "whenever any offender shall have been condemned to suffer death," the Governor-General must first con- sult the Executive Council. Having consulted them, it is his duty to exercise his own deliberate judgment, whether it is in agreement with their advice or not.

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We think that the words in the third paragraph" whenever any offender shall have been condemned to suffer death" are co-extensive with the phrase “capital cases as used in the second paragraph. This view is confirmed by the marginal note to the third paragraph.

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The question then arises, what is covered by each of these expressions? We understand that in South Africa some offences are punishable either with death or with a less penalty in the discretion of the judge. We think that a

capital case " means a case in which the offender has been sentenced to death, i.e., the test is the result of the trial and not the nature of the offence.

The next question is whether the case must continue to be regarded as a “capi- tal case after the death penalty has been remitted. We apprehend that respite or reprieve in capital cases takes the form of a conditional pardon, the condition being that the felon shall serve a term of imprisonment. In our opinion the Governor-General, when exercising his own judgment under the third paragraph of Clause IX., has power to annex to the pardon a condition prescribing imprison- ment of such length and nature as he thinks right. And, so far, he acts after consulting the Executive Council, but entirely as he thinks right. But, in view of the absence of all reference to " remission " in the third paragraph, we think that the case ought no longer to be regarded as a " capital case once the condition attached to the pardon has fixed the period of imprisonment. Any further remis sion of this imprisonment should, we think, be regarded as coming under the second paragraph of Clause IX.

2. The answer to the first question put to us covers the second question also.

We have, &c.,

The Right Honourable

Lewis Harcourt, M.P..

&c.,

&c.,

&c.

RUFUS D. ISAACS. JOHN SIMON.

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PUBLIC RECORD OFFICE

Reference :-

C.O.885

16

RECORD OFFICE, LONDON ANTHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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