CO885-(10-11) — Page 585

2708.

No. 461.

(Hong Kora.)

टै

PUBLIC RECORD OFFICE

Reference :-

ITTIC.O. 885

SIB,

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, March 18, 1867. We are favoured with your letter of the 4th February ultimo, stating that the Earl of Carnarvon had had under his consideration a report* addressed to him by the present Attorney General and the late Solicitor General respecting an Ordinance passed for the trial of piracy in Hong Kong, and that it is stated in that opinion that the 28 & 29 Vict. c. 63. does not enable Colonial Legislatures to establish courts for the trial of offences on the high seas, and that such offences would, notwithstanding the Ordinance to which the report referred, be still triable only under the provisions of 12 & 13 Viot. c. 96.; and

The conclusion was that this Ordinance would not enable the new court to try piracies not committed in Hong Kong waters; especially not to try those piracies without a jury.

You were pleased to say that Lord Carnarvon was desirous, however, of bringing under our consideration the question whether trial under the provisions of the Ordi- nance would not in fact be trial under the provisions of 12 & 13 Vict. c. 96.

That the Act of 28 & 29 Vict. no doubt taken alone only empowers a Colonial Legislature to constitute courts of justice having authority within the jurisdiction of that Legislature, but it appeared to give the power of constituting that court (whether with or without a jury) in such a shape as the Legislature may deem most applicable to the peculiar conditions of the Colony.

That the Act 12 & 13 Vict. c. 96., though previous in date, may be considerǝd for the present purpose as engrafted on the Act of 28 & 29 Vict., and it provides—

"That if any person charged within any Colony shall be charged with the com- mission of any

piracy, &c.

committed upon the sea, &c., all juries, judges, courts, public officers, &c. shall have and exercise the

for trying

such, offences

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89

same jurisdiction by the law of such Colony would and ought to have been had and exercised if such offence had been committed and such person had been charged with having committed the same upon any waters situate within the limits of any such Colony and within the limits of the local jurisdiction of the courts of criminal justice of such Colony."

That is to say, piracies committed on the high seas may be tried in any Colony by the same court and by the same procedure as if they had been committed in the waters of that Colony; and on this follows the present Ordinance, No. 9 of 1866, declaring that piracies committed in Colonial waters shall be tried by a particular court and in a particular manner.

You were also pleased to say that it would seem, prima facie, under those circum- stances that the Act of 12 & 13 Viot. makes piracies committed on the high seas triable by the process which is applied by the Ordinance to piracies committed in Colonial waters, and that consequently a trial under the Ordinance would in fact be a trial under the Imperial Act of 12 & 13 Vict.

You were pleased to request our opinion whether these considerations would warrant the Governor in bringing before the new court for trial any case of piracy, whether committed within or beyond Colonial waters with which any Colonial court would be competent to deal (i.e., any piracy whatever committed by British subjects on the high seas, or any sot which is piracy by the law of nations, even though committed by a foreigner), and carrying into effect such sentence as the court might pronounce. In compliance with the request contained in your letter we have the honour to

Report

That we all agree that if after 12 & 13 Vict. a new Colony had been planted and a court of general judicature there established, the offence of piracy upon the sea might have been there tried under 12 & 13 Vict. c. 96. But we also all think that it is not clear

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35.-6/06.

• No. 440.

11 PUBLIC RECORD OFFICE. LONDON

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