CO885-(10-11) — Page 687

PUBLIC RECORD OFFICE

C.O. 885

Reference :-

11 PUBLIC RECORD OFFICE, LONDON

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Sth, 1857, concerning the Order in Council which explains the reasons for making this Order and the doubts which it was intended to remove, and that-

7. From the above summary it would seem that the power of the governors of colonies to appoint places for transportation was finally taken away in 1853, and that it had not been renewed.

That 8, upon the second point Sir Frederic Rogers further stated that he was directed to observe that the question of deportation from the colonies had more than once been submitted to the Law Officers of the Crown, and to annex copies of their opinions on the two cases of British Guiana and Newfoundland, from which it appears that Imperial legislation is necessary to enable a local government to deport, and—

9. That it would be observed that those opinions do not in terms apply to the cases of convicta sentenced to transportation by a colonial court, and your Lordship desired to be informed whether Imperial legislation is necessary to authorise the removal from one Colony to another of persons so sentenced to transportation.

Sir Frederic Rogers also was pleased to say that (10) in connexion with the subject he was directed to state that at different times convicts have been transported from Ceylon to Malacca, and from Hong Kong to Labuan, and the facts, so far as they can be ascertained in those two cases, are as follows, viz. :-

11. Under the power given by the Order in Council of 22nd May 1840, the Governor of Ceylon in 1843, by proclamation, appointed Van Dieman's Land as a place of trans- portation. But in 1846 the Governor was desired to cancel the proclamation and to publish another, appointing Malacca as a receptacle of convicts from Ceylon. Under instructions, however, from home, dated 9th March 1849, the transportation of white convicts to that settlement ceased, and the Governor was authorised to limit transpor- tation to that settlement of natives of Ceylon; that from a report of Sir H. Robinson in 1864 it appears that only a small number of native convicts were received annually in the Straits Settlements from Ceylon, and that a question has arisen upon this part of the case, whether after the passing of the Order in Council of 1853 by which the prior Orders in Council were revoked even this limited transportation was legal, and

12. As regards the removal of convicts from Hong Kong to Labuan it appeared that the gaol at Labuan was built in 1849; that 10 convicts were sent there from Hong Kong in 1851, 60 in 1857, and 60 more in 1858; that these removals were simply authorised by Despatches from the Secretary of State, and there was no trace of any proclamation by the Governor of Hong Kong declaring Labuan to be a place for the transportation of convicts from Hong Kong.

Sir Frederick Rogers in conclusion was pleased further to say that under these cir- cumstances he was directed by your Lordship to request that we would favour you with our report upon the following questions:-

1. Whether it was competent for the Legislature of the Straits Settlements to pass the 5th section of the Ordinance under consideration, and whether it is one that Her Majesty may be properly advised to leave in operation?

2. Whether, assuming it to be desirable that provision should be made for removing convicts under sentence of transportation from the Straits Settlements to Labuan, the proper mode for effecting that purpose would be to proceed by Order in Council under the Act 6 Geo. 4. c. 69. appointing Labuan to be a place of transportation from the Straits Settlements, or by Imperial legislation, or how otherwise?

3. Whether it is desirable to take any and, if any, what steps by Imperial legislation or otherwise to validate the transportation of convicts from the Straits Settlements.to Labuan, should such removal, as is very probable, have already taken place under the Ordinance No. 11 of 1868?

4. Whether under the circumstances above stated the removal of convicts from Ceylon to the Straits Settlements, and from Hong Kong to Labuan, was legal, and whether, if illegal, the illegality could be cured by Imperial legislation, or how

otherwise?

In obedience to your Lordship's commands we have the honour to

Report

1. That we think it was not competent for the Legislature of the Straits Settlements

to pass the 5th section of the Ordinance of the 17th September 1868, and that it is not one which Her Majesty could be properly advised to leave in operation.

2. That the best mode of effecting the transportation of convicts from the Straits For although Settlements to Labuan would be by Act of the Imperial Parliament.

we entertain no doubt that Labuan might by Order in Council under 6 Geo. 4. c. 69.

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be appointed as a place for the reception of Colonial convicts, yet their treatment when there could only be regulated, and the power of the deporting Colony to interfere with them in any way beyond the limits of the jurisdiction could only be given, by Act of Parliament.

3. We think every transportation invalid which has taken place from the Straits Settlements to Labuan since the passing of the Order in Council of December 29, 1853. If, therefore, it he desired to validate such transportation it can only be done by Act of Parliament. An Order in Council would not be effectual for this retrospective purpose.

4. We think that the removal under the circumstances stated of convicts from Ceylon to the Straits Settlements, and from Hong Kong to Labuan, were illegal, and that an Act of Parliament will be necessary to validate the sentences under which they took place.

We have, &c.

The Right Hon. the Earl Granville.

(Signed)

R. P. COLLIER.

J. D. COLERIDGE.