No. 33
8th December 1869
My Lord,
I forward for Your Lordship's information an Extract from the Minutes of the Executive Council relative to the cases of three Indians convicted of Murder and sentenced to death in three differentcasesManuscript image cases during the last Assizes on the Mainland.
2. The first is a case in which I think no doubt could arise, and I see no reason to interfere with the sentence of the Court. The Convict known as George will be executed.
3. In the second case I concur with the Council in regarding the evidence, which relates to the murder of a white settlercommittedManuscript image committed seven years ago, as very unsatisfactory. The case turns on the testimony of a single Indian Witness, the accuser, whose motives are not free from suspicion. But if not falsely accused the Prisoner is guilty of a foul Crime fully deserving the extreme Penalty of the Law. I have therefore without commuting the sentence granted a reprieve in the hope that some newlightManuscript image light may be thrown upon the case.
4. The third Convict is a mere boy, under sentence of death for attempting the murder of a White man with whom he was travelling in the interior of the Country. There is no doubt that his crime was of great treachery, and it was only by accident that it was not Murder. ButI amManuscript image I am informed by Chief Justice Begbie that the case is not one where sentence of death would be inflicted in England, and he agrees with me in the propriety of commuting it to that of imprisonment for life, which I have therefore done for the reasons stated more at length in the Minutes of the Executive Council.
5. I trust that YourLordshipManuscript image Lordship will approve of my decision in these cases. I am not quite sure that it is now required that I should trouble Your Lordship with Reports on such occasions. I think I remember a Circular Despatch to other Colonies acquainting the Officers administering the Government that it was no longer necessary to report convictions forCapitalManuscript image Capital Offences. But it appears to have been the practise in this Colony to do so, and there may be reasons which induce Your Lordship to retain the regulation in the peculiar circumstance of this Colony. I shall be glad to be instructed upon this point.
I have the honor to be,
My Lord,
Your most obedient
humble Servant
A. Musgrave
Minutes by CO staff
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CC 6/1
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For circulation.
What is the practice in each Colony upon this point?
HTH 7.1.70
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The practice in most of the Colonies in my Division—if not in all—is to furnish a report of Capital sentences which have been executed—but not of temporary reprievals or commutations of Sentences.
GB 7 Jany/70
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Executions, reprieves or commutations are reported from the Eastern Colonies.
WR 7/1
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It does not appear to be the practice in the N. American Colonies to send home periodical returns of Executions. Returns are received from N.S. Wales, Victoria, Queensland & Western Australia—but not from S Australia or Tasmania nor fromManuscript image N. Zealand. If any Natives were hanged in the latter Colony their execution would probably be reported. For the instruction to send home these reports see Rule 407 of the C.O Regulations p 102. A Circular despatch was addressed to the Governors of the Australian Colonies (excepting Tasmania) on 25th April/54 calling attention to the rule.
WD 7/1
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Executions, Reprieves or commutations of capital sentences, reported from the West Indies.
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Sir F. Rogers
Acknowledge the Despatch & add that reports of capital sentences are transmitted from the majority of the Colonies, and that Ld G thinks that the course hitherto adopted in B Columbia may be adhered to.
HTH 20.1.7
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At once.
FR 20/1
Documents enclosed with the main document (not transcribed)
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Minutes of the Executive Council, 1 December 1969, relative to the trials of three cases where Indians were tried and convicted of murder.
Other documents included in the file
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Draft reply, Granville to Musgrave, No. 7, 24 January 1870.
Documents enclosed with the main document (transcribed)
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1869
December 1st

Government Buildings

The Council met at Noon
Present

The Honbles The Colonial Secretary

  1. "     The Attorney General
  2. "    The Chief Com of Lands and works
  3. "    The Collector of Customs
The Colonial Secretary informed the members of Council, he had been directed by the Governor, (who was in consequence of illness unavoidably absent) to request a meeting of the members to afford him their advice in determining whether the extreme sentence of the Law should be carried into effect in the cases of three Indians, who were triedManuscript imagetried for murder, and convicted before Chief Justice Begbie, at the late assizes on the mainland.
2. Chief Justice Begbie, who had been requested to attend the meeting, was then introduced, and his notes on the trial were read In the care of the Indian known as Charley, alias George, for the murder of Alfred Perry, known as Mountaineer Perry, it was un-animously agreed by the Council that there existed no reason why the extreme penalty of the Law should not be carried into effect.— With this view, the Chief Justice fully concurred.
3. In the case of the Indian known as Peter, for the murder of Patrick O’Brien Murphy in 1861, the Council, with the exception of Mr. Crease, were of opinion that the evidence appeared so unsatisfactory and Manuscript imageContradictory, that they would not be justified in recommending the extreme penalty of the Law should be carried into effect.—
Mr. Crease in the case of Peter, considered him guilty, but under the circumstances of the case, would not recommend that the extreme penalty of the Law should be carried out.—
Chief Justice Begbie, thought the evidence unsatisfactory, and suggested the Prisoner might be Kept in custody, until steps were taken to elicit further evidence.—
4 In the case of the Indian Mootsaik, for the attempted murder of John Alway, the Council were of unanimous opinion as to his guilt—The Colonial Secretary, and Chief Commissioner of Lands, and works, considered he was asManuscript imageas deserving of death as any Indian‸that had ever been hanged who had ever been hanged the Colony, and altho’ it has been the practice in England, within the last 12 years, (as they were informed by Chief Justice Begbie), that the sentence of death should not be carried out, unless life had actually been taken, yet, they were of opinion, that the circumstances of this Colony, do not call for a strict adherence to that practice, and especially in this particular case, in which it appears to them an example should be established, to deter others from such an act of Treachery.—
The Attorney General saw no reason for interfering with the sentence of the Court.
The Collector of Customs agreed that there was no doubt as to the guilt of Mootsaik, and judging by the evidence would say, was deserving of deathManuscript imagedeath, but under the circumstances of the case, would not recommend the extreme sentence of the Law should be carried into effect. —
The foregoing minute being submitted to the Governor, His Excellency concurred in the opinion expressed by the Council, in the cases of the convicts known as George, and Peter.
With regard to the third case of the Boy Mootsaik, His Excellency stated, that notwithstanding the opinion of the majority of the Council, he found himself unable to regard it, as one in which the extreme penalty should be inflicted, when according to the present state of the English Law, the sentence of Death, would not be carried into effect, in such a case in England; He regarded it as dangerousManuscript imagedangerous to admit the principle, even with regard to the conduct of Offenders from among the white population, that a different standard from that prevailing in the mother Country should govern the administration of Criminal Law in this Colony.
Painful instances had already come under his notice of a disposition to regard as Venial Offences, in the case of White men, Acts, which would have incurred capital punishment in the case of Indians.
More-over, the lad Mootsaik, had himself confessed his crime, before he had been accused, and the manner, and circumstances of its Commiform, as well as the absence of any previous malic, or motive suggestion strongly, the suspicion of Insanity in the Prisoner’s conduct; And life had not actuallyManuscript imageactually been taken. —
The Governor stated, that under all these circumstances of the case, he should commute the sentence to Imprisonment for Life, and he understood the Chief Justice to agree with him in the propriety of this course.
I certify the above to be a correct copy of the minutes of the Executive Council held December 1st 1869.

Phillip J. Hawkin
Colonial Secretary and Clerk to the Executive Council
Musgrave, Anthony to Leveson-Gower, Granville George 8 December 1869, CO 60:36, no. 179, 520. The Colonial Despatches of Vancouver Island and British Columbia 1846-1871, Edition 2.2, ed. James Hendrickson and the Colonial Despatches project. Victoria, B.C.: University of Victoria. https://bcgenesis.uvic.ca/B69233.html.

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