5084.
No. 165.
(WESTERN Pacific.)
LAW OFFICERS TO COLONIAL OFFICE.
Royal Courts of Justice, March 4, 1898.
PUBLIC RECORD OFFICE
C.O. 885
Reference :-
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
SIR,
We were honoured with your commands signified in Mr. Lucas's letter of the 21st ultimo stating that he was directed by you to forward to us the accompanying letter
4
from the Admiralty, together with its enclosed report from Captain H. H. Dyke, R.N., January 14. commanding Her Majesty's Ship Comus," upon a murder which was committed at Pitcairn Island, in the Southern Pacific, on the 20th June, 1897.
That Pitcairn Island was the retreat to which the mutineers of Her Majesty's Ship Bounty" betook themselves with some Tahitian women in 1789, and had from that time until now been inhabited by them and their descendants. That it lies outside the limits of the Pacific Order in Council of 1893, in longitude about 131 W. and latitude about 25 S.
That in 1838 Captain Elliott, R.N., visited the Island in Her Majesty's Ship "Fly." and. on the representation of the leading inhabitants-who had been much harassed by American whalers-drew up certain regulations for the election of a Chief Magistrate and supplied the Islanders with a Union Jack, which was hoisted, under his authority, in token of their submission to Her Majesty's sovereignty. That the regulations drawn up by Captain Elliott would be found on page 139 of the enclosed volume entitled "Mutiny in the Bounty' and Story of the Pitcairn Islanders."
That subsequently, in a Memorial to Her Majesty dated July, 1853, the Islanders, while acknowledging with pride and gratitude the visits of Her Majesty's Ships of War to their Island, humbly trusted that they might be allowed not only to consider themselves Her Majesty's subjects, but that it should be deemed a British Colony in the fullest sense of the word " they added that if Her Majesty's Government would grant them a document declaring them an integral part of Her dominions they would be freed from all anxiety as to their position. That it was intimated to them soon afterwards that the issuing of such a document "might imply doubts that did not really exist"; and that though numerous other visits of ships of war had since taken place, no formal declaration of sovereignty had ever apparently been made on behalf of the Crown.
That a Mr. Brodic, who was left on the Island through a mishap in 1850, made a collection of the Laws, written and unwritten, at that date prevailing there-a copy of which would be found on pages 178-180 of the above-mentioned volume. That another collection of those Laws, differing in several particulars from those given by Mr. Brodie, formed the second appendix to a Report, dated 17th September, 1878, furnished to the Admiralty by Rear-Admiral de Horsey, who was then Commander-in-Chief on the Pacific Station. That neither of those collections contained any law on the subject of murder, a crime which had hitherto been unknown among the members of the remarkable community in question.
That according to Admiral de Horsey's version of the Pitcairn Code "the Magistrate is to preside on all public occasions, and if any case is brought to his notice, he is to hear both sides of the question and to decide and pass judgment accordingly, and should his judgment be objected against, he is to call his Councillors to his assistance, according to whose decision the parties are to abide until the arrival of the first British Man-of-War, to whose Commander the case must be submitted and from whose decision there is no appeal." That the Magistrate was also empowered to legislate for the community.
That Captain Dyke visited the Island on November 2nd, 1897, and was then informed by the Governing Body (now consisting of five persons, under the presidency of Alfred Yong) that Harry Albert Christian (great-grandson of the late Fletcher Christian, the ringleader in the historic mutiny) had, on the 20th June of that year, murdered Clara Warren and her infant child, of which he was the father, and had subsequently confessed to having committed the crime. That the Governing Body, being doubtful whether they possessed the power of life and death, and also feeling a natural reluctance to carry out any sentence of death upon one who was closely related to them, decided to keep him in confinement until the arrival of Her Majesty's Ship " Comus."
That, after consultation with the Governing Body, who asked that Christian might be conveyed to England for trial, Captain Dyke, feeling that he was not justified in taking that step on his own responsibility, arranged that the prisoner should be kept in custody
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pending the receipt of instructions from England. That, before leaving, Captain Dyke saw Christian, who repeated his confession, and added that after killing his victims he threw their bodies over the cliff into the sea.
That it was presumed that as Pitcairn, whether a Colony or not, must be regarded since the visit of Her Majesty's Ship "Fly" in 1838 as within Her Majesty's dominions, the provisions of 46 Geo. III. Cap. 54 and 57 Geo. III. Cap. 53, for trial by a Commission, were not applicable in the present case.
That Mr. Lucas was to request that we would take the papers into our consideration and advise you as to the best method of bringing Christian to justice, and that Mr. Lucas was to enquire, in particular :-
(1.) Whether, if the murderer and the necessary witnesses were conveyed to England, he could be tried here under the provisions of section 9 of 24 and 25 Vict. Cap. 100?
(2.) Whether Pitcairn Island is a British Settlement, and, if so, whether the laws against murder in force in England when it was settled in 1789 apply to it; and, if so, whether under that law, and what specific provision of that law, the murderer could be tried, and whether before the Chief Magistrate or what other tribunal ?
(3.) Whether an Order could be made under the British Settlements Act, 1887, or under the Pacific Order in Council, 1893, for the trial of the case, and whether there was any objection to that course being taken er post facto?
(4.) Generally, what course should be adopted to secure the punishment of the offence in question, and to provide for the punishment of such offences, in future?
We have taken the matter into our consideration, and, in obedience to your commands, have the honour to
Report-
(1.) That if the murderer and the necessary witnesses were conveyed to England, he could, in our opinion, be tried here under section 9 of 24 and 25 Vict. Cap. 100,
(2.) Pitcairn Island is a British Settlement, and the laws against murder in force in England when it was settled apply to it. The murderer has, therefore, by the law of the Island, incurred the penalty of death; but there is a difficulty in saying that the Chief Magistrate should condemn him to death. We think he might, with the consent of the community, but the procedure would be anomalous, and therefore-
(3.) We advise that the Secretary of State should give a direction under article 6 of the Pacific Order in Council, 1893, which will bring Pitcairn Island within the scope of the jurisdiction conferred by that Order in Council. The direction of the Secretary of State might be so framed as to apply not merely to Pitcairn Island, but also to any other Islands in the Pacific for which it may be desirable to make such provision.
If Christian be charged before a Court constituted under the Order (see articles 49 and 60), he could, in our opinion, be tried and condemned or otherwise punished by such Court, notwithstanding the fact that the crime was committed before the giving of the direction by the Secretary of State.
(4.) We recommend that the scope of the Order in Council of 1893 should be extended in the manner above suggested.
The Right Hon. Joseph Chamberlain, M.P.,
&c..
&c..
&c.
We have, &c.,
RICHARD E. WEBSTER. ROBERT B. FINLAY.
7650.
SIR.
No. 166.
(WESTERN PACIFIC.)
LAW OFFICERS to COLONIAL OFFICE.
Royal Courts of Justice,
April 5, 1898. We were honoured with your commands signified in Mr. Bertram Cox's letter - of the 28th ultimo stating that, with reference to our Report of the 4th March* respecting the case of murder which had occurred at Pitcairn Island, he was directed to transmit for our consideration the Draft of a Despatch and an Instruction which you proposed to address to the High Commissioner for the Western Pacific in accordance with the recommendations in the 3rd and 4th paragraphs of our Report.
That you would be glad to be informed whether we considered the Draft Despatch and Instruction proper and sufficient for the purpose, and, if not, that we would indicate what modifications we thought desirable.
We have taken the matter into our consideration, and in obedience to your commands have the honour to
Report-
That, with the alterations made in red ink†, we approve of the Draft Instruction and Despatch.
We have struck out the words "as from the 1st January 1897;" the procedure initiated by the direction comes into play only from its date, but crimes committed before can be tried under it.
We have, &c.,
Draft.
The Right Hon. J. Chamberlain, M.P.,
&c..
&c..
&c.
Western Pacific.
High Commissioner Sir G. T. O'Brien,
K.C.M.G.
SIR.
RICHARD E. WEBSTER. ROBERT B. FINLAY.
Downing Street.
March, 1898.
I have the honour to forward for your information a copy of a letter from the Admiralty, with an accompanying report from Captain H. H. Dyke, R.N., commanding H.M.S. "Comus," upon a double murder which was committed by one H. A. Christian, at Pitcairn Island, in the Southern Pacific, on the 20th June. 1897.
2. The question of the legal position of this settlement, and of the best method of bringing the murderor to justice, has been referred to the Law Officers of the Crown, and they advise that
(1) That if the murderer and the necessary witnesses were conveyed to England
he could be tried here under section 9 of 24 and 25 Viet. cap. 100.
(2) That Pitcairn Island is a British Settlement, and the laws against murder in force in England when it was settled apply to it. The murderer has, there- fore, by the law of the Island incurred the penalty of death, but there is a difficulty in saying that the Chief Magistrate should condemn him to death. He might, with the consent of the community, but the procedure would be anomalous, and therefore
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