9557.
No. 144.
(WESTERN PACIFIC.)
The LORD CHANCELLOR to the EARL OF CARNARVON.
5, Cromwell Houses, 4th August 1877.
MY DEAR CARNARVON,
I HAVE considered the further Foreign Office letter relating to the Western Pacific (draft) Order in Council, and the previous papers accompanying your letter to me of 27th July 1877.
I do not think that it is essential to the administration of criminal justice, in all circumstances whatsoever, that there should be a jury. At any rate, I do not think there is any greater need of strict adherence to English precedent on this point in the case of offences committed at sea than in the case of offences committed on land. If a trial was necessarily to be held at a particular spot, the impossibility of obtaining a jury of British subjects there would be a sufficient reason for dispensing with trial by jury in that case. I believe it would be found on inquiry that this view has been acted on in other cases of Orders in Council under the Foreign Jurisdiction Acts. I should, therefore, not see any objection to the Order in Council passing as it stands in this respect.
However, I think it will be better that trials for grave offences committed at sea at a great distance from the Western Pacific Islands should be had within some jurisdic- tion where they can be conducted in the ordinary course.
I would therefore recom-
mend that the instructions to the High Commissioner contemplated by you (as stated at the end of the Colonial Office letter to the Foreign Office of 14th February 1877) should comprise directions for the sending of the accused in such cases to a place in the dominions of the Crown, where a jury can be had, for trial, under section 4 of the Foreign Jurisdiction Act of 1843, and according to the provisions of Article 52 of the (draft) Order in Council.
I think that this course will reconcile all views, and that thus the issue of the Order in Council (which, you observe, is of importance) will not be delayed for further alteration.
I may add that understand the Law Officers to have not insisted in their latest report, comprised among the papers (that of 16th March 1877), on any objection previously made by them, except their objection to the application of the system of interrogation to British subjects charged with offences of the kind in question; and you have, in pursuance of my former letter, removed the grounds for this objection by amendments of the (draft) Order.
The Earl of Carnarvon,
&c.
&c.
Yours, &c., (Signed) CAIRNS.
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