that class of all protection from the law, except where special enactments have been made in their favour.

According to those doctrines, the inquiry whether a slave has been lawfully convicted before he is put to death must always be superfluous, for he is boldly declared to derive no protection from the common law, and to be out of the King's peace. Not only the public executioner, therefore, but any private individual is at liberty to treat him in any way he may think proper, subject only to such penalties (if any) as may have been specifically provided for the fact committed, and to such damages as the owner may recover for the injury done to his property in the slave.

These doctrines do not appear to have been universally adopted. The Commissioners for legal inquiry have in their reports distinctly pronounced their opinion that slaves, as subjects of his Majesty, are entitled to the protection of the common law, and many lawyers in the colonies have plainly viewed the subject in the same light. We do not hesitate to inform your Lordship that such is also our opinion, and it follows that to deprive a slave of life without lawful authority must be murder or manslaughter, according to the circumstances of the particular case.

Having cleared away this preliminary difficulty, which would have precluded all further inquiry, we beg leave to state that we have read the case attentively, and think the questions correctly propounded at its close,-whether the indictment against Sam Fahie, Andrew Fahie, Johnns Purcell, Jacob Kierney, and MacDaniel (otherwise called McDonald), is sufficiently precise and definite to be sustained in point of law; and, secondly, whether the slaves ought to be admitted to their benefit of clergy.

We entertain no doubt on the first point. The indictment is, in our opinion, completely worthless, as giving the accused no notice of the offence with which he stands charged. The first principles of law require that the charge shall be so preferred as to enable the Court to see that the facts amount to a violation of the law, and the prisoner to understand what facts he is to answer or disprove.

No argument is necessary to show that this indictment is insufficient, and unavailing for either purpose.

If sufficient overt acts had been set forth, and the jury had found the prisoners guilty, we are inclined to think, on the very technical

point relating to benefit of clergy, that the prisoners would not have been entitled to that privilege. But we deem this discussion unnecessary, after giving a deliberate opinion on the nature of the indictment.

But, with a view to the future administration of criminal law in Tortola, and in other colonies where similar laws may have been made, we crave permission to express our serious doubts whether the law of 1783 is not in its own nature too vague, indefinite, and unintelligible to be capable of enforcement in any case: in other words, whether it is not, like some other legal instruments canvassed in courts of justice, void for uncertainty.

We also conceive that this law may well be challenged as being contrary to natural justice. The crime to be punished is thought not even requiring to be evinced by any overt act. The only overt act mentioned (and that as a separate crime) is speaking words tending to mutiny, &c. But unless they should be wilfully spoken it is against reason to punish the utterer.

Sir Edward Coke, in the eighth part of his Reports (page 118), records the opinion of the Court of King's Bench, that "in many cases the common law will control Acts of Parliament, and sometimes adjudges them to be utterly void;" and though Blackstone (1 Com. 85) questions the right of the judicial authority to overrule the legislative, he exemplifies the manner in which the former may easily elude the latter.

For avoiding such collisions, and for establishing a criminal law which may admit of no difficulties in the execution, we respectfully suggest the propriety of a speedy change in that upon which the questionable indictment against the five slaves has been founded. To the Right Hon. Visct. Goderich,

&c. &c. &c.

T. DENMAN.

WM. HORNE.

(5.) JOINT OPINION of the Attorney and Solicitor General, SIR WILLIAM HORNE and SIR JOHN CAMPBELL, on the Power of the Crown to grant a Conditional Pardon.

Lincoln's Inn, December 26, 1832. MY LORD,-We have the honour to acknowledge the receipt of your Lordship's letter of the 28th November last, transmitting to us a copy of a despatch dated 31st May last, which your Lordship

received in the month of June from the Governor of Antigua; and the copy of a despatch from yourself to the Governor, dated 19th of the same month; the copy of a despatch from the Governor to your Lordship, dated 30th August, and of two enclosures contained in it-these papers comprising the answer of the law officers of the Crown of Antigua to three questions proposed by your Lordship for their consideration, and requesting us to report to your Lordship our opinion with reference to these questions. We beg to state to your Lordship that we entirely concur in opinion with the law officers of Antigua upon the several questions submitted to us.

1st. We think that the introduction of the slave Mary into Antigua from Saint Bartholomew, under the circumstances stated, was not a violation of the Act for the abolition of the slave trade; as this Act could not be meant to prevent a fugitive slave, who had absconded from his master to a foreign island, from voluntarily returning or being brought back by the person who induced his clandestine departure.

2nd. The Colonial Act on which this indictment proceeded appears to us to define with sufficient clearness the offence for which the prisoner was tried.

3rd. We are of opinion that if the party, after accepting the conditional pardon, should in breach of the conditions return to the island, he might in strictness be referred back to his original sentence, and, his identity being proved, execution might be awarded against him.

There is hardly anything to be found respecting conditional pardons in the old English law-books (1); but the authority of the Crown to grant a conditional pardon in capital cases is distinctly recognized in statute 5 Geo. 4, c. 84, s. 2; and it has been several times decided by the English Judges, that where the condition on which a pardon was granted has been broken, the offender may be referred to his original sentence. But we feel it our duty to add that this power, in our opinion, could only be properly used for compelling a performance of the condition.

To the Right Hon. Visct. Goderich,

&c. &c. &c.

W. HORNE.

J. CAMPBELL.

(1) The Crown may extend its mercy on what terms it pleases, and consequently may annex to its pardon any condition that it thinks fit, whether prece

(6.) JOINT OPINION of the Attorney and Solicitor General, SIR FREDERICK POLLOCK and SIR WILLIAM FOLLETT, on the commutation of Sentence of Death to Transportation, with consent of the Convict.

Temple, August 31, 1842.

SIR,—We beg to acknowledge the receipt of your letter of the 10th instant, wherein you state that George Hiscock, a soldier of the 76th Regiment, having been sentenced by the civil courts in Nova Scotia to death for the crime of firing at a sergeant of that corps with intent to kill, the Lieutenant-Governor of the province, at the instance of the jury, recommended a mitigation of the sen

tence.

The Lieutenant-Governor was in consequence authorized to commute it for transportation for life: on consulting, however, the Attorney General of the province, that officer has suggested doubts as to the mode in which the proposed mitigation of punishment can be lawfully carried into execution.

You were pleased to enclose for our information a copy of the despatch from the Lieutenant-Governor, communicating a copy of the report made by the Attorney General; and you further stated that you had been directed by Lord Stanley to request that we would take the subject into our early consideration, and state to his Lordship our opinion respecting the steps to be taken for giving effect to Her Majesty's directions in favour of the prisoner.

In obedience to his Lordship's commands we have taken this matter into our consideration, and have the honour to report that we think a pardon ought to be granted under the Great Seal of the province, in which the condition of transportation and the place to which the convict is to be transported should be clearly expressed. The consent of the convict in writing should be previously obtained

d;

dent or subsequent, on the performance whereof the validity of the pardon will depend: Hawkins P. C. Bk. ii. c. 37, s. 45; see R. v. Miller, 2 W. Bl. 797; R. v. Madan, 1 Leach, C. C. 223; R. v. Dickie, ib. 390; and the Opinion of the Law Officers, p. 76, ante. See also Stat. 16 & 17 Vict. c. 99, s. 5. As to cases where the Crown extends mercy to a prisoner convicted of a capital offence upon condition of his being kept to penal servitude for any term of years, or for life, see The Queen v. Baker, 7 Ad. & Ell. 502; Leonard Watson's Case, 9 Ad. & Ell. 783.

after this we think the convict may lawfully (under 5 Geo. 4, c. 84, s. 17) be brought to England in order to be conveyed to the place to which the transportation applies (1).

G. W. Hope, Esq. &c. &c. &c.

F. POLLOCK.

W. W. FOLLETT.

(7.) JOINT OPINION of the Attorney and Solicitor General, SIR A. E. COCKBURN and SIR RICHARD BETHELL, that commutation of sentence from Transportation to Imprisonment without consent of the Convict is illegal.

Temple, May 3, 1854.

MY LORD DUKE,-We were honoured with your Grace's commands, contained in Mr. Merivale's letter of the 20th ultimo, in which he stated that he was directed by your Grace to transmit to us copy of a despatch and its enclosure from the Governor of Barbadoes, reporting the commutation of a sentence for manslaughter; also copy of the section of the Barbadoes Act referred to (5 Will. 4, c. 9, s. 9); also of a further despatch, enclosing a letter addressed to your Grace by the counsel for the prisoner, in his behalf.

Mr. Merivale further stated that he was directed to request that we would take these papers into our consideration, and report whether we considered that the commuted sentence of nine years' imprisonment was legally awarded in this case; and if not, what steps it would be proper for the Governor of Barbadoes to take?

In obedience to your Grace's command, we have taken the several papers transmitted to us into our consideration, and have the honour to report that we are of opinion that the commutation

(1) It has been laid down that no man can contract for his own imprisonment: Clark's Case, 5 Rep. 64 a; Foster v. Jackson, Hob. 61; Case of James Sommersett, 20 State Tr. 50. But, as was determined by the Court of Queen's Bench in Leonard Watson's Case, 9 Ad. & Ell. 783, this has no application to the case of a man charged with a crime, but permitted by the law to confess it before arraignment, and so enabled to obtain a pardon, by which his life is spared, but he binds himself to undergo a less severe punishment. In that case the Legislature of Canada had passed an Act authorizing the Governor to grant a pardon to such persons charged with high treason as should before arraignment confess their guilt and petition for a pardon, on such conditions as should seem fit; and the prisoner was so charged and so pardoned on condition of being transported to Van Diemen's Land for life.