4488.
PUBLIC RECORD OFFICE
Reference :-
CO.
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
SIR,
No. 196.
(WESTERN PACIFIC.)
LAW OFFICERS to COLONIAL OFFICE.
Temple, 20th March 1879.
We were honoured with your commands, signified in Mr. Herbert's letter of the 4th of January last, stating that he was directed by you to transmit to us a copy of a Despatch from Chief Justice Gorrie, written in the absence of Sir A. Gordon in this country, in which it was suggested that the jurisdiction exercised by the High Commissioner for the Western Pacific under the Order in Council of the 13th August 1877 (a copy of which was annexed), should be extended in the manner specified to natives living within the High Commissioner's command, and to request that we would favour you with our opinion whether it was competent to Her Majesty to confer upon a British Court jurisdiction to try savages for offences against British subjects.
And, if so, what instrument would be proper for the purpose.
Mr. Herbert was further to ask us to favour you with our advice generally upon the proposal.
In obedience to your commands we have the honour to
Report
That we are unable to concur in the views expressed by Chief Justice Gorrie. We do not think it is possible, by any expedient whatever, to avoid the serious infringement of international jurisprudence which would be involved in Her Majesty assuming a jurisdiction over foreigners not within any part of Her Majesty's dominions. The right to make laws must arise either from a personal jurisdiction, as where Her Majesty is entitled to the allegiance of her own subjects all over the world or is derived from the sovereignty over the territory with respect to which it is sought to legislate. The maxim, extra territorium gis dicenti impune non paretur, is strictly relevant to the suggestion of the Chief Justice, and if we understand rightly that suggestion it is that, by an Act of Parliament or an Order in Council, Her Majesty should obtain or create a jurisdiction to try foreigners who are neither her subjects nor within her territories. Such an Act or Order could effect nothing, and we think would be a very mischievous example of a State attempting to legislate for those beyond its jurisdiction. If savage tribes inflict violence or injury, the only alternative is to treat those acts as acts of war, and vindicate justice accordingly.
The Right IIon.
Sir Michael Hicks Beach, M.P.,
&c.
&c.
&c.
We have, &c. (Signed) JOHN HOLKER.
HARDINGE S. GIFFARD.
A 12916.-305.
25.-12/84.