278.
PUBLIC RECORD OFFICE
Reference :-
CO. 885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
MY LORD,
No. 3.
(NEW ZEALAND.)
LAW OFFICERS to COLONIAL OFFICE.
We are honoured with your Lordship's commands, signified in Mr. Herbert's
Temple, 9th January 1874. letter of the 4th of December, stating that he was directed by your Lordship to transmit to us a copy of a despatch from the Governor of New Zealand, reporting the No. 70, circumstances in which he had complied with a requisition made to him by the 27 Sep. 1873. United States Consular Agent in the Colony for the surrender under "The Extradition Act, 1870," of the chief mate and two of the orew of a United States merchant ship, which had arrived at Wellington, and submitting certain questions arising upon the
case.
The enclosures which accompanied the despatch were also annexed.
Mr. Herbert stated that he was to request that we would peruse these papers, and favour your Lordship with our opinion-
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1. Whether the "Consular Agent" was properly held by the Governor to be an authority of the United States."
2. Whether the Governor's proceedings and his decision to surrender King, Lewis, and Fulton to the Consular Authority of the United States were correct.
Habeas
3. Whether there were any grounds for the application for a writ of " Corpus," on account of the crime not being an extradition crime under the Ashburton Treaty, as between the United States and this country, and whether the Supreme Court rightly declined to make an order for the discharge of the prisoners.
4. Whether the Draft Bill introduced by the New Zealand Government meets the requirements of the case, or whether we would suggest any alterations in it.
5. Whether to remove the danger of possible complications and irregularity of procedure in similar cases in other Colonies, we would recommend an Imperial enact- ment to provide for them.
Mr. Herbert further stated that your Lordship would be glad to be favoured with any further suggestions or observations which we might have to make upon these
papers.
In obedience to your Lordship's commands we have the honour to
Report
That the question submitted for the decision of the Supreme Court of New Zealand involved several grave and doubtful matters, and we feel unwilling to be placed in the position of reviewing a judgment which is very able, and with which, in many respects, we entirely agree.
Upon the main point we however entertain some doubt as to the correctness of the judgment. The right to claim extradition in this case depends upon the Ashburton Treaty, and unless the offence charged came within that treaty, the prisoners were entitled to their release.
66
Piracy," as mentioned therein, must, on the authority of In Re Ternan (5 B. & S. 65) be taken for the purpose of this case to mean piracy, according to the municipal law of the country, demanding the extradition, and not piracy jure gentium. Now, the accused persons were charged with " Revolt on board a ship of the United States."
No such offence is named in the Ashburton Treaty, and we are of opinion that the charge should have been co nomine "Piracy," the offence named in the Treaty, and not revolt," which is not mentioned in it, and which is not naturally piracy, but only so created by an English statute. We must, however, observe that this point does not seem to have been argued or suggested at the Bar.
Looking at the doubt which exists in this case, and also at the difference of opinion entertained by the judges in Ternan's case, there certainly is necessity for legislation or new Treaty upon the point we have thus discussed.
In relation to the minor point as to the person by whom the representation should be made, the question is set at rest by the seventh section of the 36 & 37 Vict. c. 60.,
▲ 12916.-5. 25-13/84.
2
which also renders the provision on the point in section 3 of the New Zealand Bill unnecessary.
Sections 5 and 6 of that Bill seem to be objectionable as repealing portions of the Imperial Extradition Act, so far as they apply to New Zealand.
'. The Right Hon. the Earl Kimberley,
&c.
&c.
&c.
We have, &c., (Signed)
HENRY JAMES.
W. V. HARCOURT. J. P. DEANE.
611.