PUBLIC RECORD OFFICE
Reference :-
LICO.885
PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
No. 13.
British Courts have no jurisdiction in respect of illegal art», committed against emigrants on board foreign vesaris.
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Assembly of freeholders qualified as therein specified, and with the advice and consent of the Council and Assembly to make laws and ordinances, &c;
That the Council had been constituted agreeably to the Commission and Jastructions;
That no General Assembly had, as yet, been summoned, and it might be assumed, for the purpose of this case (although Her Majesty's Government had not distinct evidence on the subject before them), that the number of qualified freeholders in the island was, as yet, extremely small, so as to render the summoning such an Assembly a matter of much difficulty:
That the question on which he (Mr. Peel) was desired to request our opinion was, whether the Ordinance now submitted to us, passed by the Governor and Council alone, could be legally assented to by the Crown, and would have the force of law.
In obedience to your request, we have taken the said Ordinance into our consideration, and have the honour to report—
That the Act in question professes to be enacted by the Governor, with the advice and consent of the Members of the Council, and by the authority of the saine. But the power of legislation, though expressed by the letters-patent to be given to the Governor and Council, is thereby directed to be exercised according to the instructions under the sign-manual accompanying the patent; and by those instructions, the power of legislation is vested (as by law it must be) in the Governor, Council, and General Assembly. We do not think, there- fore, that the Ordinance or Act in question can be properly assented to by the Crown, or that it would have the force of law.
&c.
&c.
The Right Hon. Sir G. Grey, Bart.,
&c.
We have, &c.
(Sigued) A. E. COCKBURN.
Emigration.
No. 13.
RICHARD BETHELL.
Copy of a LETTER from the LAW OFFICERS of the CROWN to Earl GREY.
My Lord,
Lincoln's Inn, February 26, 1851.
WE were honoured with your Lordship's commands contained in Mr. Merivale's letter of the 19th February instant, in which he stated that he had been directed by your Lordship to transmit to us an accompanying copy of a letter from the Colonial Land and Emigration Commissioners, suggesting a difficulty which might probably arise as regards the jurisdiction possessed by British or Colonial Courts over acts committed against emigrants on the high seas under a foreign flag, and he was to request that we would take this letter into our consideration, and report to your Lordship our joint opinion upon the point raised by the Commissioners.
In obedience to your Lordship's' commands, we have considered the various documents submitted to us, and have the honour to report that we are of opinion, that if an emigrant be illegally treated on the high seas by the masters or officers of a foreign vessel, he would not be able to obtain redress from the Colonial Courts. In other words, that these Courts would not, nor could any British Courts, have jurisdiction over acts committed on the high seas under à
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foreign flag, and that the recent Act 12 and 13 Vict. cap. 96, facilitating the trial in Colonies of offences committed on the high seas would not meet the case.
The Right Hon. Earl Grey,
&c.
&c. &c.
SIR,
We have, &c. (Signed)
Hong Kong.
No. 14.
J. DODSON. JOHN ROMILLY.
A. E. COCKBURN.
Copy of a LETTER from the LAW OFFICERS of the CROWN to Sir J. PAKINGTON.
Doctors' Commons, September 21, 1852.
No. 14.
WE are honoured with your commands, signified in Mr. Merivale's letter of British Courts have the 14th instant, stating that he was directed to request that we would furnish no jurisdiction in you with our joint opinion upon the following questions.
respect of illegal It appears that a number of Chinese, emigrating in a vessel under the accom American flag, have risen upon the captain and crew, murdered most of them, on board foreign
against emigrants possessed themselves of the vessel, changed her course, plundered, and finally vessels.
abandoned her.
It need hardly be said that they did not themselves hoist any flag, or assume
any national character.
That an American officer, who has captured some of the supposed criminals. desires that they should be tried by the Supreme Court at Hong Kong; but, as the seizure of the ship and murder of the crew was effected by subjects of a foreign Power, and under a foreign flag, it appears very doubtful whether this can be done. That the Acting Attorney-General of the Colony is of opinion, on the grounds stated in his letter (of which a copy is annexed), that it can; but, on a point of so much delicacy and importance, he is desirous of acting with the sanction of the Law Officers of the Crown in this country.
That the questions, therefore, on which our opinion is requested are:- First, whether any British authority could, consistently with the Law of Nations, take cognizance of such a case as that above described; and,
Secondly, whether the Supreme Court at Hong Kong possesses that authority.
That on the first of these questions it appears unnecessary to trouble us with any observations. That on the second, it is desirable to inform us that the Legisla ture of Hong Kong is, by the Governor's Commission (from which an extract is annexed), authorized to make such laws and ordinances as may be required for the peace, order, and good government of the Colony.
That by the Colonial Ordinance No. 6 of 1845 (of which a copy is annexed), a Supreme Court of Judicature was established, to which, however, no Admiralty Jurisdiction was, or, indeed, could, legally, be given. But by the Imperial Act 12 and 13 Vict., cap. 91, sec. 1, it is enacted that Colonial Courts of Justice shall have the same authority to try offences committed within the jurisdiction of the Admiralty, as if these offences had been committed on any waters within the limits of the Colony, and of the jurisdiction of the Colonial Courts.
In obedience to your commands we have taken the papers into considera- tion, and have the honour to report, that we are of opinion---
First, that no British authority could, consistently with the law of England, or with the law of Nations, take cognizance of such a case as that described.