658.
PUBLIC RECORD OFFICE
Reference :-
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CO. 885
MY LORD,
No. 121.
(FIJI.)
LAW OFFICERS to FOREIGN OFFICE.
We are honoured with your Lordship's commands, signified in Lord Tenterden's
Temple, January 3, 1877. letter of the 23rd October last, stating that he was directed by your Lordship to transmit to us a letter from the Colonial Office, enclosing a Draft Order in Council for the regulation of the exercise of Her Majesty's jurisdiction over British subjects in West Polynesia, and that he was to request that we would take that Draft Order in Council into our consideration in connexion with the explanatory remarks contained in the letter from the Colonial Office, and favour your Lordship with our opinion at our earliest convenience whether there was any objection to any of its provisions.
In obedience to your Lordship's commands we have the honour to
Report
That if the judgment in the "Franconia" case is to be taken to decide that the sea washing the shores of a State to the distance of three miles is not part of such State, we should, in deference to such decision, come to the conclusion that under the Pacific Islanders Protection Act, 1875, section 6, Her Majesty had no power to make by Order in Council laws which should affect British subjects on board British or foreign ships whilst on such portion of the sea.
Clause 21 of the Order provides in effect that British subjects found in the Western Pacific Islands can be tried for offences committed on the high seas, according to the procedure prescribed for the trial of persons who have committed offences within the islands. We do not think Her Majesty could confer such a power. It is true the Pacific Islanders Protection Act authorised the establishment of a Court for the trial of persons accused of the perpetration of crimes within the jurisdiction of the Admiralty; but we think it was not intended that the Court so to be established should be at liberty to adopt in the trial of persons accused of crimes committed on the high seas a course of procedure unknown to the laws of the realm.
Subject to the above observations, the provisions of the Order in Council appear to be such as the Crown had power under the before-mentioned Acts to make. reference to the question whether there is any objection to the provisions of the With Order, we beg to remark that some of such provisions seem to be extremely arbitrary, and others appear to introduce novel principles of procedure repugnant to British law. We refer chiefly to the provisions for deportation of British subjects without appeal, and for the interrogation of persons accused of crime. We presume, however, that those by whom the Order in Council has been prepared are in possession of information respecting the condition of the Western Pacific, which justifies the extraordinary character of these provisions.
The Earl of Derby.
We have, &c., (Signed)
JOHN HOLKER. H. GIFFARD.
J. P. DEANE.
▲ 12916.-190. 25.-12/84.
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
12 PUBLIC RECORD OFFICE, LONDON