of the sentence of transportation to imprisonment for nine years is illegal. The Crown has no power, except when such a power is expressly given by Act of Parliament, to commute a sentence passed by a court of justice. Practically, indeed, commutation of punishment has long taken place under the form of conditional pardons. For the Crown, having by the prerogative the power of pardon, may annex to a pardon such conditions as it pleases. Thus, for offences for which the punishment was death, where it was not deemed advisable to carry the sentence of death into execution, the course, from an early period, was to grant a pardon on condition of the convict being transported to some settlement or plantation. But this could only be done with the consent of the felon. The Crown cannot compel a man, against his will, to submit to a different punishment from that which has been awarded against him in due course of law. The sentence of transportation passed in the present case cannot, therefore, be changed into one of imprisonment, unless the substituted punishment be assented to by the prisoner as a condition of the remission of the sentence of transportation. Even then, as the law has fixed the maximum of imprisonment, as corresponding to the maximum of transportation, at four years, it seems to us, that if the sentence of transportation be commuted into imprisonment, it would be desirable to act in consistency with the principle adopted by the legislature as to the relative proportions of the two punishments, and not to insist on a longer term of imprisonment than four years. His Grace the Duke of Newcastle, &c. &c. &c. A. E. COCKBURN. (8.) JOINT OPINION of the same Law Officers, that in such a case the Original Sentence may be carried into execution. Temple, July 5, 1854. SIR,-We were honoured with his Grace the Duke of Newcastle's commands, contained in Mr. Merivale's letter of the 12th ultimo, in which he stated that, with reference to our letter of the 3rd of May last-wherein we reported that the commutation, by the Governor of Barbadoes, in a case of manslaughter, of a sentence of transportation for life into one of imprisonment for nine years, was illegal under the law of the island-he was directed by his Grace to request that we would favour him with our further opinion, whether the original sentence of transportation may now be legally carried into execution. In obedience to the above request we have again considered the subject, and have the honour to report That, inasmuch as the commutation by the Governor of Barbadoes of the original sentence into one of imprisonment for nine years was null and void, not being warranted by law, we are of opinion that the original sentence remains, and may be legally carried into execution. Under the circumstances, we think an offer should be made to the convict to commute the original sentence into a sentence of four years' imprisonment with hard labour; and if the convict refuses to assent thereto, that the original sentence should be carried into effect. The Right Hon. Sir G. Grey, Bart., &c. &c. &c. A. E. COCKBURN. (9.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN CAMPBELL and SIR R. M. ROLFE, that a Witness admitted to give Evidence for the Crown cannot refuse to answer questions on the ground that his answers may criminate himself, and that a Conviction obtained after such refusal is bad. Inner Temple, October 12, 1835. MY LORD,-We have to acknowledge the receipt of a letter from your Lordship, dated the 29th ultimo, together with a despatch from the Governor of the Windward Caribbean Islands, dated the 22nd of July last, with various enclosures relating to the case of George Lindsay, a prisoner in the common gaol of St. Vincents, who was tried by the supreme criminal court of that island for stealing a musquet-in which letter your Lordship is pleased to desire that we should report whether there was any valid objection, in point of law, to the conduct of Lindsay's trial, or to his conviction? We beg leave, therefore, to state to your Lordship that, in compliance with your Lordship's desire, we have taken this case into our consideration, and we are clearly of opinion that the trial of Lindsay was not conducted according to law. The chief witness against Lindsay was a man of the name of Welbank, an accomplice, who was admitted as evidence for the Crown. Being so admitted, he was bound to disclose the whole truth relative to the charge in question, without regard to the consequences to himself, and he could not refuse to answer any question on the ground that it would show him to have been engaged in the same theft for which Lindsay was tried. The Court, however, permitted Welbank to decline answering many of the questions put to him, on the plea that he would be thereby criminating himself, and thus let his evidence go to the jury in an imperfect state. We think this was clearly wrong, and consequently that the conviction was improperly obtained. J. CAMPBELL. R. M. ROLFE. (10.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN CAMPBELL and SIR R. M. ROLFE, on the illegality of an Ordinance passed by the Governor and Council of Lower Canada, directing certain persons to be transported to Bermuda and detained there. Temple, August 6, 1838. MY LORD,-In answer to your Lordship's letter of the 4th instant, requesting our opinion whether there is any objection, in point of law, to the confirmation by Her Majesty in Council of an ordinance passed by the Earl of Durham and the Special Council of Lower Canada, on the 28th June last, entitled, “An Ordinance to provide for the security of the Province of Lower Canada," we have to state that, in our opinion, so much of this ordinance as directs the class of persons therein first enumerated to be transported to Bermuda, and to be kept under restraint there, is beyond the power of the Governor and Special Council, and void; but that all the rest of the ordinance is within their power and valid. The imperial stat. 1 Vict. c. 9, s. 2, authorizes the Governor and the Special Council to make such laws or ordinances for the peace, welfare, and good government of the province of Lower Canada, as the Legislature of Lower Canada as there constituted was empowered to make, with certain exceptions which do not affect the validity of the ordinance in question. The Legislature of Lower Canada, as constituted by 31 Geo. 3, c. 31, had conferred upon it a general sovereign legislative power within the province, and it is expressly enacted that all Acts passed by this legislature shall be valid and binding, to all intents and purposes, within the province in which the same shall have been passed. We conceive, therefore, that the old legislature might have lawfully passed an Act for banishing from the province the first class of persons described in this ordinance, and enacting that if any of this class or of the second class should return to the province without the leave of the Governor, they should be deemed guilty of treason, and being convicted thereof should suffer death. This could not be done by the proclamation of the Governor, but it is an act of legislation for which there are precedents in the Parliaments of Great Britain and of Ireland. There is no pretence for saying that if this part of the ordinance really were put in force the parties who suffer would be put to death without trial. Before they could suffer they must be indicted for having returned to the province without leave of the Governor, which by law is made treason, and they could only suffer on being duly convicted of the offence laid to their charge. Of course we are only considering the regularity of such a proceeding in strict law, without giving any opinion as to its being expedient or proper. With respect to that part of the ordinance which is to be executed beyond the limits of the province of Lower Canada, we are of opinion that it would acquire no force by being confirmed by Her Majesty, and we humbly conceive that in confirming the ordinance by Her Majesty that part of it which exceeds the power of the Governor and Special Council ought to be expressly excepted. The Lord Glenelg, &c. &c. &c. J. CAMPBELL. (11.) JOINT OPINION of the Attorney and Solicitor General, SIR JOHN JERVIS and SIR JOHN ROMILLY, on the power of Police Constables to arrest in certain cases without Warrant. 1849. Case. Whether police constables are authorized to arrest and detain, without warrant, persons charged with the offences men tioned in the 64th and 65th sections of the Police Act (2 & 3 Vict. c. 47), upon the mere statement of the party making the charge, unsupported by any corroborative circumstances or evidence; or under what circumstances such arrests without warrant are justifiable? Opinion. This question presents difficulties which can only be solved by prudence on the part of the officer. On the one hand, it would be highly improper to act in cases where the consequence is so serious upon mere suspicion; while on the other, if the police were only to apprehend parties charged with such offences upon the view, or in cases where corroborating evidence was forthcoming, offenders would escape and the public would be dissatisfied. Upon the strict construction of the statute no corroborative evidence is essential. If the constable has "good cause" to suspect, he may arrest upon the statement of one witness only. But whether the cause of suspicion is good or not must in such case depend upon circumstances. For instance, if an interval unexplained by the accuser have elapsed between the assault and the complaint, the constable should not act without a warrant. So of course, if in the inquiry the constable have reason to doubt the truth of the complainant's story, or believe that he has entrapped the accused for the purpose of the charge, the cause of suspicion would not be good, and the constable ought not to act without a warrant. On the other hand, if the constable be attracted to the spot by the cries of the complainant, or if the accused give a contradictory or unsatisfactory account of himself, the constable should act without a warrant. We have mentioned these different circumstances only in illustration of what we have above said-viz., that much must be left to the prudence and discretion of the officer; and repeat that, in strictness, no corroborative evidence is necessary, but that the circumstances and charge must be such as would justify a reasonable man in suspecting that the offence had been committed (1). Temple, December 31, 1849. JOHN JERVIS. (1) A private individual may justify an arrest for felony without warrant, if he can show either that a felony was in fact committed by the person arrested, or that a felony was committed by some one, and that he had probable cause to |