PUBLIC RECORD OFFICE
Reference :-
C.O. 885
10
ALLY WITHOUT PERMISKER BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
PUBLIC RECORD OFF
OF THE
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enactment a British subject cannot be tried or punished by a British tribunal for any offence committed out of British territory, and unless by recent annexation, the Transkeian territory does not (as we understand) form part of British Kaffraria, or consequently of the British dominions.
Assuming that such annexation has not been already effected, it follows that the Governor of the Cape of Good Hope could not confer any judicial or magisterial authority as regards offences committed within the territory in question, except in 80 far as he may be empowered so to do by the 6 & 7 Vict. c. 57., the only Statute which so far as we are aware bears upon the subject. But that Act does not warrant any "trial" within the territory; but only (s. 2) committals for trial there; such trial to take place before such courts as would have heard and determined the case if the offence had been committed within the "Colony," that is to say, courts sitting and adjudicating within the Colony of the Cape of Good Hope.
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But, assuming the annexation to be already accomplished (as we do), then the Governor, having authority, under the charter of 7th March 1854 (Articles III. and VIII.), to provide for the good government of British Kaffraria, and to appoint officers for the administration of justice there, is, in our opinion, empowered to erect tribunals, such as justices of the peace and the like sitting within the territory for the trial and punishment of crimes committed within the newly annexed territories. We also think it competent to the proper authority to order the imprisonment within the Colony of the Cape of Good Hope of offenders brought from British Kaffraria. At the same time we are of opinion that in striot form any such appointment of a magistrate should be an appointment, in terms, by the Governor or Lieutenant-Governor and not by the High Commissioner." The powers of the High Commissioner are extra-territorial; and do not relate to acts done within any part of the present territory of the British Crown. We infer that the territories lying between "the Kei and Bashee and Umqwali Rivers," mentioned in the Ordinance of the 7th July 1862, are the same as It the territories more shortly described in the annexing charter of 13th March 1862. would be better if the same description were pursued in each of the two instruments. We also understand that the terms proposed to be used, "powers and authority of a "resident magistrate of the Colony of the Cape of Good Hope" are terms descriptive only of the extent and nature of the authority to be exercised by properly appointed judges acting in Kaffraria. For, strictly speaking, a magistrate of the Colony of the Cape of Good Hope, although resident in Kaffraria, would have no jurisdiction in those territories; still the authority of a Kaffrarian magistrate might be conveniently con- ferred by such a reference as above to the power of a Cape of Good Hope justice of peace resident in that Colony.
On the whole, we are of opinion that a magistrate or magistrates for the new district of British Kaffraria should be appointed by the Governor, as Governor; and then that an "Ordinance" proceeding on such appointment should be issued to the effect of the Ordinance of the 7th July 1862. That Ordinance ought not in our opinion, and for the above reasons, to be confirmed by Her Majesty.
His Grace the Duke of Newcastle, K.G.,
&c.
&c.
&c.
We have, &c. (Signed) W. ATHERTON.
ROUNDELL PALMER.
12338.
No. 153.
(Hong Kong.)
LAW OFFICERS to COLONIAL OFFICE.
-
MY LORD DUKE,
Temple, December 24, 1862. We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 3rd December instant, stating that he was directed by your Grace to request that we would favour you with our opinion on the questions raised in the accompanying Despatch from the Acting Governor of Hong Kong.
Sir Frederic Rogers was also pleased to state that we would learn from that Despatch and its enclosures that William Kent Stanford, master of the "Tropic" receiving ship, and a member of a mercantile firm to whom that vessel belonged, together with another person awaiting his trial in Hong Kong, defrauded many of the mercantile community by borrowing sums of money on opium, which he asserted to be his property, and which was stored on board the "Tropic." Stanford was tried by the Supreme Court of Hong Kong and sentenced to eight years' penal servitude, and the points on which our opinion was desired were :—
1. The house and furniture of Stanford being confessedly lawfully forfeited to the Crown on his conviction, does the fact of the "Tropic" being the property of the firm of which Stanford was a member render her exempt from a like forfeiture, at any rate in favour of the creditors of the firm; and,
2. Are the goods found on board equally free on the ground that they were only placed on board the "Tropic" for safe custody?
Sir Frederic Rogers was further pleased to state that your Grace would also be glad to be informed whether, in our opinion, the Attorney General of Hong Kong judged rightly in advising the superintendent of police to give up property supposed to be in the mere custody of the convict to persons who should prove themselves owners of it, and to require as a condition of such delivery that they should guarantee him against the consequences of such delivery, and should consent to pay their share of the expenses of the police, and to request us to advise what course the Colonial Government should pursue supposing Her Majesty's Government prepared to give up all right to the convict's property for the good of his creditors.
In obedience to your Grace's commands we have taken this matter into consideration, and have the honour to
Report
That in our opinion the house and furniture of the felon Stanford having been, previous to his conviction, his own exclusive property, became on such conviction forfeited to the Crown.
The receiving ship the "Tropic "not having been the exclusive property of the felon, but belonging to a firm in which he was a partner, did not as an entire chattel become liable to forfeiture on the conviction of Stanford, his share alone was his pro- perly speaking, and to that alone the Crown became entitled. But the share of an individual partner in partnership property is but his proportion of value or benefit after all claims on the firm have been satisfied out of the joint assets, in this case amounting to nothing, if we are to accept the statement that the firm was insolvent.
As regards the opium and other goods found on board the " Tropio," assuming the fact to be (and there does not appear to be any ground for doubting it) that such goods had been placed on board the ship by the owners for the purpose of safe custody only, then they were not at any time the property of the firm, much less of the convict partner. There might probably be a claim in the nature of warehouse rent operating as a charge or lien on the goods themselves, but the amount would not be very con- siderable, and being partnership and not separate property, it would be exhausted in satisfying partnership claims in the way we have pointed out with reference the "Tropic," leaving nothing under this head to be forfeited to the Crown.
With reference to the advice which was given by the Attorney General of Hong Kong to the superintendent of police, to give up property supposed to be in the mere custody of the convict and his partner to persons who should prove themselves owners of it upon certain conditions, it appears to us that the superintendent was well advised to require the condition of a guarantee against the consequences of such a delivery.
0 16278.761. 25.---2/86.