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PUBLIC RECORD OFFICE

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C.O. 885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

11 PUBLIC RECORD OFFICE, LONDON

MY LORD Duke,

No. 508.

(HELIGOLAND.)

LAW OFFICERS to COLONIAL OFFICE.

Temple, May 7, 1868.

We are honoured with your Grace's commands, signified in Mr. Elliot's letter of the 24th of April ultimo, stating that he was desired by your Grace to state that your Grace had had under your consideration a report of the 6th April, addressed to you by us upon the question of the liability of officers and sailors in Her Majesty's service landing at the request of the Governor of Heligoland to assist the police in the collection of

taxes.

That it is there stated that there may be cases in which sailors, like civilians, may properly aid in the preservation of the public peace, using no more force than is necessary to effect that object, but that the interference of the sailors in such cases must be justified by the circumstances, and would not be rendered legal merely by reason of their acting under the Governor's orders.

That in the absence of some visible force in support of the Government considerable difficulty has been found on former occasions, and may be again anticipated, in enforcing the payment of taxes or the penalties for non-payment in Heligoland, and certain of Her Majesty's ships have been at different times sent to the island to assist the Governor in enforcing the law. That it will probably be desirable as heretofore that the civil authority should be occasionally supported by the presence of some force from Her Majesty's ships, even though no actual disturbance of the peace may be going on. That the mere presence of such force may as hitherto secure obedience to the law, but it may be assumed that in no case would they be called upon to take an active part unless there was actual resistance to the law. That it is, however, very necessary that the exact position of persons so employed should be ascertained, and that they should not be exposed to any criminal charge.

Mr. Elliot was also pleased to state that he was desired further to add that a new constitution, of which a copy was enclosed for reference, has just been sent out to the island, and that it is possible that some resistance may be at first made to it on the part of those who were interested in the former state of things and are discontented with the change.

That under these circumstances he was directed by your Grace to request that we would favour your Grace at our earliest convenience with our opinion upon the following questions

1. Whether the fact of an actual resistance to the law, involving a breach of the peace, would justify sailors and marines in aiding the civil authorities, assuming that no more force is used than is necessary to preserve the peace and enforce the law.

2. Under such oircumstances what steps should be taken and whose orders are necessary and sufficient to free such sailors and marines from a criminal charge should any loss of life or bodily injury ensue? And

3. Whether they can be sworn in for service on guard in case of apprehended resistance of the law, or for special duty as police on the requisition of the Governor or magistracy, when no breach of the peace is actually going on.

In obedience to your Grace's commands we have taken this matter into our con- sideration, and have the honour to

Report

That the fact of an actual resistance to the law involving breach of the peace, by which we understand riotous and tumultous assemblies acting in resistance duly constituted authority, would justify sailors and marines in aiding the civil authorities, assuming that no more force is used than is neccessary to preserve the peace and enforce the law.

We would add, though no question is directly asked upon this subject, that the practice of landing a force from Her Majesty's ships at the request of the Governor of Heligoland, even though no actual disturbance of the peace may be going on, in order to secure an obedience to the law, and to prevent an outbreak by the mere presence of such a force, is one we think may properly be continued. It is a power, however, to

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Council. But if such appointee had acted between his provisional appointment and the date last mentioned, his acts would, we think, to that extent be invalid.

3. Appointments by the Governor since December 1861, there being no warrant or appointment from the Crown, are, we think, invalid.

4. We think that it would be expedient to remove doubts as to the validity of appointments of and acts done by Legislative Councillors by a short declaratory

We have, &c.

Act.

(Signed)

His Grace the Duke of Buckingham and Chandos,

&c.

&c.

&c.

JOHN B. KARSLAKE. WM. BALIOL BRETT.

4707.

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