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James Stephen, Minute on Smith to Stanley No. 5

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Id:
1994
Title/Headline:
James Stephen, Minute on Smith to Stanley No. 5
Publication/reference number:
CO 101/78
Date:
03/05/1834
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"Mr Lefevre, I apprehend that you must send this case to the Attorney and Solicitor General for the Prisoner claims his discharge not as an act of grace, but of strict right; and such Rights cannot be properly conceded or denied on any other than the highest accessible Authority. It would be superfluous for me to write any opinion upon them a Question which must thus be transformed from myself to others. I cannot however abstain from observing that if the law shall really be found to justify a Sentence of fourteen years labour at the Hulks at Woolwich, to be followed by 14 years Transportation to N. S. Wales for such conduct as the [?] have ascribed to the Petitioner, it is a law which cannot be [?] soon repealed, and of which H. M. ought to arrest the [Executive?] in this particular case. The imputed offence is Obeah. The real crime is nothing more or less than that of having [practised?] as a Quack Doctor. I believe there is not a Newspaper published this morning in London, which does not contain Projects for curing Disease, compared to which those of this unfortunate Negro are rational and judicious. By Obeah, I have always supposed to be meant Practices intended to impair Health and Life, and afflicting their Purpose through the subjection to which the imagination first, and then the Spirits of the Victim are reduced. Pierre did no harm, and meant no harm. One of his Patients was actually better for his treatment, and in the other case, the sick Child 16 was neither better nor worse. He seems to me, therefore to have been a chiefly successful and respectable Practitioner.

To aggravate the folly of the sentence, you will perceive that this unlucky compounder of drugs (if so one may designate his Rum and Parrot beaks, & scrapings of Stags Horn) though a Cripple, and reduced by that infirmity to seek his living as a Conjurer, is to work for 14 years at the Hulks at Woolwich, perhaps indeed Mr. Chief Justice Sanderson contemplates a kind of retributive justice by keeping the African Doctor for the rest of his life at the Woolwich Hospital, to endure from his European Brethren what he has been so long inflicting on his Creole Patients. Pierre will be a most undesirable addition to our list of medical Practitioners or Paupers, according as, upon his arrival amongst us, his destinies may guide him to the one of the other Vocation. That he should serve His Majesty by any bodily labour at Woolwich or elsewhere, is plainly hopeless.

I believe the Conviction itself, to be illegal. That however is a Question which, as I have already mentioned, I decline. It is more material to notice that the Chief Justices Notes are very slight, and that he has altogether omitted to notice the Questions of law raised by the Prisoner's Counsel.

The Prisoner may I suppose be very shortly expected here, even if he has not actually arrived: and perhaps it would be right to apprize the Home Office that such a Convict is expected, and that the both the lawfulness and the propriety of the sentence passed in the Colony, are under Mr. Stanley's [consideration ?] from whom a further and that a further Communication may be expected from him as soon as he shall have received the Report of the Law Officers of the Crown.

JS

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