No. 41.
PUBLIC RECORD OFFICE
Reference :--
minimim TTTTTC.O.885
3 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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enclosed representation from the President of the Missionary Society at Basle, with the annexed correspondence.
That Christiansborg, where the proceedings took place which resulted in injury to their property, is on the Gold Coast, and its fort is one of those ceded by Denmark to this country in the year 1850. The town itself is not in the territorial dominion of Her Majesty, but is subject, with various parts of the neighbouring coast, to the influence of Great Britain, which exercises there, by acknowledgment and sufferance, a jurisdiction under the Foreign Jurisdiction Act, 6 & 7 Vict., cap. 94.
That Her Majesty's Government have no information to lead to the suppo- sition that the missionaries were in any way connected with the parties who took up arms against the British Government, nor did they take part on either side in the proceedings.
Mr. Merivale further states that he is directed by your Lordship to request that I would report my opinion, whether, under these circumstances, Her Majesty's Government ought, according to recognized international usage, to compensate the missionaries for the damage sustained by them. Should I be of opinion in the affirmative, your Lordship will take steps to ascertain the reasonable amount of such compensation.
In obedience to your Lordship's commands I have taken the papers into consideration, and have the honour to report that I am of opinion that, under the circumstances stated, Her Majesty's Government would not be bound by international law and usage to compensate the missionaries for the damage sustained by them. They had reasonable notice from the officers of Her Majesty of impending hostilities; they were offered protection for themselves and their property within the fort, which they advisedly declined, and they took no precau tions whatsoever. The case, however, appears to be deserving of favourable consideration from its peculiar features, and the missionaries (although they have no legal claim upon Her Majesty's Government may be considered as proper objects of special favour upon the following grounds :-
1st. They were informed on the 9th September by Captain Bird, that hostilities were for the present suspended, and that they should be informed in due time when they were to commence.
2nd. They were informed on the 12th September by Captain Bird that it was likely there might be some firing on the next day, but that he trusted to their honour not to make this public amongst the natives. They remark, with some reason, that this would have in effect been done, if they had then attempted to remove their effects, and that they could not have safely done so.
3rd. They appear to have been told (on what day I do not observe) that
their buildings would not be fired upon from the fort.
4th. These buildings appear to have been destroyed, not by the fire of the fort, but from that of Her Majesty's ship "Scourge," and by mistake for other different "white houses," at which she was ordered by signal to fire.
5th. Governor Hill expressly states in his letter to them of November 10, that "they did all in their power to prevent collision between the insurgents and Her Majesty's troops.'
6th. They had early notice to retire, and to remove their property, and they appear not to have done so from a sense of duty, from confidence in the British forces not injuring them, and from a desire not to increase the prevailing excite- ment, but to use their influence over the natives favourably to the objects of Her Majesty's officers up to the last moment.
your Lordship consider it proper to recommend the grant of any Should sum of money to them, I would venture to suggest that it should be clearly intimated that it is done entirely on exceptional grounds, and as a special favour, in consideration of their meritorious conduct and services, and that it is not to be considered as a precedent.
The Right Hon Lord J. Russell, M.P.,
&c.
&c.
&c.
I have, &c.
(Signed)
J. D. HARDING.
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No. 41.
Copy of a LETTER from the LAW OFFICERS of the CROWN to Mr. MERIVALE.
S1R,
Temple, August 11, 1855.
WE were favoured with your letter of the 21st ultimo, in which you stated that you were directed by Lord John Russell to transmit to us copy of an Ordinance passed by the Governor and Legislative Council of Her Majesty's Forts and Settlements on the Gold Coast, to provide for the administration of the property of deceased persons, and to request our opinion whether this Ordinance could be properly confirmed by Her Majesty.
In obedience to your request we have considered the various documents transmitted to us, and beg to report that we are of opinion, from the information contained in them, that, at the time of the passing of the Act 6 & 7 Vict., cap. 94, a jurisdiction to administer the estates of persons (British subjects or otherwise) dying intestate in parts adjoining the forts on the Gold Coast within British protection had, by usage or sufferance, been exercised in the name of Her Majesty, and was, therefore, by such usage or sufferance, vested in the Crown, and, consequently, that it is lawful for Her Majesty, by force of the aforesaid Statute, to hold such jurisdiction, and to grant the same to be exercised by judges or other persons duly appointed for that purpose.
Our answer, therefore, to the first question submitted to us by your letter is in the affirmative.
With respect to the second question it is necessary first to observe that, as the Charter contained in the Letters-Patent of the 24th January, 1850, makes no mention of the Statute 6 & 7 Vict., cap. 94, or of the jurisdiction thereby acquired, and does not mention or refer to the native towns and territory adjoin- ing the forts upon the Gold Coast, but it is limited to the possessions of the Crown, we are of opinion that the Governor and Legislative Council had no authority under that Charter or otherwise to make the Ordinance of the 4th of April, 1855; and secondly, we must observe, that although the form of Com- mission of the Judicial Assessor does refer to the Act 6 & 7 Vict., cap. 94, yet we concur with Vice-Chancellor Wood in opinion that the very vague und indefinite words in the operative part of that Commission are insufficient to grant to such Assessor the particular jurisdiction in question, and, therefore, our auswer to the second question submitted to us is in the negative.
With respect to the third question submitted to us, we are of opinion that it is most desirable that any future Commission should not be in the present form, or in any form which would leave the duties of the Judicial Assessor within the aforesaid jurisdiction of the Crown to be defined by Ordinance, but that any such future Commission should specifically delegate to the Judicial Assessor such power in cases of civil and criminal jurisdiction as Her Majesty may by treaty, usage, &c., within the countries specified, possess.
Lastly, for the reason given in our answer to the second question, we think the Ordinance of the Governor and Legislative Council cannot be properly confirmed by Her Majesty, inasmuch as it emanates from the Governor and Legislative Council of the Gold Coast, instead of from the Queen in Council. The Foreign Jurisdiction Act authorizes Her Majesty to exercise jurisdiction where acquired by usage or otherwise in the most absolute manner, but no power is given to the Local Legislature of any colony adjacent to which the foreign territory may be in which jurisdiction is acquired, to interfere in respect of the same; and by the Letters-Patent conferring legislative powers on the Gold Coast Council such power is granted within the Queen's forts and settlements on the Gold Coast, and without any reference to the jurisdiction acquired in the adjacent territory.
It seems to us, therefore, that the exercise of this jurisdiction in matters testamentary arising within the protected territory can only be settled by an Act emanating from the Crown.
In addition, therefore, to a new Commission to the Assessor proper directions for the exercise of the jurisdiction in question should be expressly given by Her Majesty by an Order in Council.
We are, &c. (Signed)
Herman Merivale, Esq.,
&c.
&c.
&c.
J. D. HARDING.
A. E. COCKBURN. RICHARD BETHELL.