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C.O. 885
that any special court established by a Colonial Legislature after 12 & 13 Vict. for special and limited purposes could, under 12 & 13 Vict. o. 96., also try the offence of piracy on the high seas, even though the special and limited purposes were closely connected with that offence. The Imperial Legislature was willing to trust the ordi- nary courts of criminal justice of the Colony, whether such courts were established before or after 12 & 13 Vict., with the trial of piracy on the sea in the same manner as if the offence had been committed within 'the local jurisdiction of these courts, but we are not satisfied that on the true construction on the 12 & 13 Vict. the jurisdiction to try such offences was to be entrusted to any exceptional tribunal which the exigencies of any particular Colony might require and justify,
In the present case the tribunal of six persons is to consist of two naval officers, two Such legal functionaries, and of two other persons to be appointed by the Governor. a tribunal, or indeed a tribunal still more exceptional, might well be constituted under the 28 & 29 Viot. to try in a special manner particular offences occurring within the Colony without being, as a necessary consequence, authorised to try piracy committed on the sea in any part of the world under 12 & 19 Vict.
It must be borne in mind in disposing of the question that there is already a Supreme Court at Hong Kong having jurisdiction to try piracy on the high seas by virtue of 12 & 13 Vict. This adds to the difficulty of the question.
On the whole we think it will not be advisable to assume that the proposed Ordi- nance will authorise the new court to try the offence of piracy on the high seas.
Sir Frederic Rogers, Bart., &c.
&0.
&o.
We are, &c.
(Signed)
JOHN ROLT.
JOHN B. KARSLAKE. ROBERT PHILLIMORE.
3128.
No. 462.
(VICTORIA.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD DUKI,
Lincoln's Inn, March 30, 1867. We are honoured with your Grace's commands, signified in Sir Frederic Rogers' letter of the 26th instant, stating that he was directed by your Grace to transmit to us the correspondence relating to an arrangement entered into between Her Majesty's Government and the Colony of Victoria for the construction and maintenance by the Colony of an iron-plated ship of war. That we should perceive from that corre- spondence that the Colony of Victoria applied for a ship of war as essential to the completion of the defence of the Colony, and that such application has been granted upon the terms of Mr. Adderley's letter of the 15th November. Sir Frederic Rogers was to beg our attention to the following clause in that letter:--
"It is clearly understood that this ship is maintained for the protection of the important British as well as Colonial interests that require naval defence in the waters of the Colony. She will therefore in time of war be under the command of the senior Naval Officer on the station, who in the event of any serious emergency will not be preoluded from withdrawing her for a time from the immediate waters of the Colony in case the general safety should in his judgment inske such a temporary withdrawal absolutely necessary.
"It is of course understood that such an emergency should be a serious one, and that due regard should be had to the wishes of the Colony."
That it may be assumed, therefore, that the main purpose of this arrangement is to provide a vessel of war for the defence of the Colony and for co-operation in time of war with Her Majesty's naval forces in operation against Her Majesty's enemies.
Sir F. Rogers was also pleased to transmit copies of the Colonial Naval Defence Act, 1865 (28 Vict. o. 14.).
That it is apprehended that under the provisions of the Act the first step to be taken is for the Colonial Legislature to pass an Act providing for the several purposes set forth in the sub-sections of section 3, so far as the case requires it, such Act to be then sent over for Her Majesty's approval.
That instructions to that effect will be sent out by this mail to the Colony, but that the following questions as to the legal status of the vessel have arisen, upon which Sir F. Rogers was to request our opinion:
(1.) Whether, assuming the Colonial Legislature to pass and Her Majesty to approve
46
of an Act declaring the purposes under sub-section 1 of section 3 for which the vessel is to be maintained to be "the defence of the Colony and co-operation in "time of war with Her Majesty's naval forces in operation against Her Majesty's enemies," such armed vessel acting in co-operation with Her Majesty's naval forces, but under the Colonial flag, may in time of war proceed to chase, engage, and capture an enemy and do other acts of war beyond as well as within Colonial waters, though no offer of the vessel to the Admiralty has been made or accepted under section 6 of the Colonial Naval Defence Act?
(2.) Whether such an armed vessel may in time of war proceed under the Colonial flag to act as above mentioned beyond as well as within the Colonial waters, lat, either for the defence of the Colony, or, 2ndly, for the general purposes of war and defeating Her Majesty's enemies, though no offer has been made or accepted under section 6, and though not in direct co-operation with any of Her Majesty's naval forces, as, for instance, in a case where war has been proclaimed, but there are no naval forces of Her Majesty near the Colony with which to co-operate. With reference to these questions Sir F. Rogers was pleased to call our attention to " which the fact that the first sub-section of section 3 does not limit the " purposes Her Majesty is authorised to approve and that the 7th sub-section of section 3 contemplates the employment of the vessel within Colonial waters "or elsewhere without reference to an offer and acceptance by the Admiralty under section 6.
16976.-700, 25.----5/86.
"
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PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION MI