453 CHAPTER XVII. ON CERTAIN POINTS RELATING TO CRIMINAL LAW. (1.) JOINT OPINION of the King's Advocate, SIR CHRISTOPHER ROBINSON, and the Attorney and Solicitor General, SIR ROBERT GIFFORD and SIR JOHN COPLEY, on an application by the United States Government, that certain Proceedings of Outlawry in Canada might be revoked. Doctors' Commons, May 15, 1823. MY LORD,—We are honoured with your Lordship's commands of the 3rd instant, transmitting a letter from Lord Francis Conyngham, inclosing the copy of a note which has been addressed to Mr. Secretary Canning by the American Minister in this country, requesting that certain proceedings of outlawry which have been passed in Upper Canada, against John M'Donnell, may be revoked; and your Lordship is pleased to request that we would take the same into consideration, and report to your Lordship our opinion, as to the steps necessary to be pursued in the event of his Majesty deeming it expedient to comply with the application of the American Government. In obedience to your Lordship's commands, we have the honour to report that, in the event of his Majesty deeming it expedient to comply with the application of the American Government, the effect of the outlawry against John M'Donnell, the legality of which does not appear to be questionable, may be removed, either by a nolle prosequi being entered upon the indictment, by the Attorney General of the province, on the part of his Majesty, or by a general pardon to be granted to Mr. M'Donnell. To the Earl Bathurst, &c. &c. &c. CHRIST. ROBINSON. R. GIFFORD. J. S. COPLEY. (2.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN COPLEY and SIR CHARLES WETHERELL, on a Petition presented to the Governor of the Colony of the Cape of Good Hope containing libellous matter, and as to how far it was privileged (1). Serjeants' Inn, April 28, 1825. MY LORD,-We have had the honour to receive your Lordship's letter, dated the 13th instant, requesting our opinion upon the following questions, viz.: 1st. Whether under the statute 1 Will. & M. c. 2, or under any general principle or maxim of the law of England, it is competent to a natural-born British subject of his Majesty resident in the colony of the Cape of Good Hope, to present with impunity to the Governor of that settlement a petition for redress of grievances, containing statements which, if published to the world at large, would, according to the principles both of Dutch and English law, have been libels in the Courts of the colony; and which, according to the principles of Dutch law, would be punishable as libels, even though communicated exclusively to the Governor ? 2nd. Whether the impunity of the petitioner in such a case depends upon the statements in question being relevant to the objects of his petition; or whether libellous statements, if clearly irrelevant and unnecessary, would subject him to a criminal prosecution for libel? 3rd. Whether any distinction is to be made between petitions presented to the Governor in his judicial character, and those addressed to him as the chief executive officer of Government in the colony? 4th. Whether his Majesty's subjects born in Great Britain enjoy any privileges in this respect, while actually in the Cape of Good Hope, distinct from those of the Dutch inhabitants who have become his Majesty's subjects by the cession of the colony? In compliance with your Lordship's request, we have taken into our consideration the statement and questions contained in your Lordship's letter, and beg leave to report, as our opinion upon the first question, that a British subject born within the United Kingdom, but resident at the Cape of Good Hope, could not so act with (1) See page 86, ante. impunity, but would be subject to punishment according to the laws of the colony in which he was resident; and as to the second question, we think the circumstance of the libellous statements being irrelevant and unnecessary would not in England subject the party to punishment in the case of such a petition as would be deemed a privileged communication. As to the third question, it would with reference to this subject be difficult to separate the characters of Governor and Judge, and to say that any petition of this description was presented to the Governor merely in his judicial capacity. But even if such separation could be made, and it were clear that the petition was presented to him solely in his judicial character, still if he had authority to interfere in the matters to which the petition related, such petition would, we think, according to the law of England, be a privileged communication. As to the fourth question, we are of opinion that his Majesty's subjects born in Great Britain do not enjoy any privileges in the above respects, while actually resident at the Cape, distinct from those of the Dutch inhabitants who have become his Majesty's subjects by the cession of the colony. To Earl Bathurst, &c. &c. &c. J. S. COPLEY. (3.) JOINT OPINION of the King's Advocate, SIR HERBERT JENNER, and the Attorney and Solicitor General, SIR CHARLES WETHERELL and SIR NICOLAS TINDAL, on a trial of Pirates at Malta; on a Jury de medietate, and Right of Challenge in that case. Doctors' Commons, April 24, 1828. SIR,-We are honoured with your commands, signified in your letter of the 8th instant, transmitting a case which has been prepared under your direction, respecting certain persons who have been capitally convicted of piracy before the Court for the trial of pirates at Malta; and you are pleased to request that we would, with the least possible delay, report for his Majesty's information our opinion upon the question proposed for our consideration at the conclusion of that case. In obedience to your commands, we have the honour to report that we think the sentence against the three convicts mentioned in the preceding statement may be legally carried into effect. For we conceive the object of the Legislature in passing the 46 Geo. 3 was to substitute a trial by the common course of the law in England where persons are charged with piracy in colonies and other places beyond sea, instead of a trial by the course of the civil law, which had been directed by the statute 11 Will. 3; and we think the Act must have a reasonable construction put upon it, and that it must intend a trial by jury, so far as the forms of that trial are practicable in the country where it takes place. Indeed, to construe the Act as requiring the trial by jury in all the exact forms for naming and summoning the jury prescribed by the law of England would be to make the statute a dead letter. It appears that the charge was first submitted to persons summoned in the nature of a grand jury, and found by them to be a true bill. The number, indeed, of such jurors is not expressly stated, but we assume that twelve of the jurymen concurred in such finding of the bill, and that such twelve constituted a majority. The trial then took place by twelve persons, half being subjects of his Majesty and half being aliens, and chosen out of a number summoned to serve on the jury amply sufficient to allow of all the challenges to which the prisoners were entitled (1). We are of opinion, therefore, that the Act has been complied with as closely as circumstances would allow, for a mode of naming and summoning the jury more conformable to the English law is stated to be impracticable in the island. As to the objection that two of the alien jurymen were disqualified upon the ground of their having been attainted of treason and felony, and outlawed in consequence thereof by the law of a foreign country, we see no reason to believe that parties so circumstanced come within the scope of the exception in 6 Geo. 4, c. 50, s. 3, which we think must be interpreted as descriptive of persons attainted and outlawed by the English law. And, at all events, in the present case the objection came too late, for it was properly the ground of challenge only, which must be made before the jury (1) In the Notes to Chapter IV. (p. 117, ante), I have expressed an opinion that pirates, although foreigners, are not entitled to be tried by a jury de medietate; but I do not feel at all sure on the point. men are sworn, and cannot be insisted upon afterwards. And here it appears by the statement that the prisoners must have been aware of the objection before the trial, inasmuch as we collect that it was taken and proved before the jury was discharged. Upon the whole, therefore, assuming the grand jury to have been constituted as above supposed, we think the inquiry and trial has been according to the common course of the law of England within the meaning and construction of the Act. Upon the other part of the statement in the petition, which appeals to a merciful consideration of the case, we do not of course presume to give any opinion. The Right Hon. Mr. Sec. Huskisson, &c. &c. &c. HERBERT JENNER. CHAS. WETHERELL. In case it should upon further investigation be ascertained that the prisoners and their counsel were unacquainted with the ground of challenge at the time when such challenge ought to have been taken, we think it right to state that that circumstance will not, in strictness of law, make any difference whatever, as the challenge must be taken before the trial begins. But at the same time, as a reasonable doubt may be raised that the prisoners, from inadvertency or ignorance, have lost an advantage, it may be matter of discretion for the Crown whether the severest measure of punishment should be inflicted in that case. April 30, 1828. HERBERT JENNER. (4.) JOINT OPINION of the Attorney and Solicitor General SIR THOMAS DENMAN and SIR WILLIAM HORNE, on the Right of Slaves to claim Benefit of Clergy, and degree of certainty required in an Indictment. Lincoln's Inn, January 24, 1832. MY LORD,-We feel ourselves bound to take the earliest opportunity of answering your Lordship's letter of the 18th instant, which submits to our consideration a case respecting the trial of certain slaves in the island of Tortola, because the doctrines on which the claim to benefit of clergy on the part of slaves in Tortola has been resisted in that island, go the whole length of depriving |