CO885-(10-11) — Page 812

سلسا

PUBLIC RECORD OFFICE

Reference :-

C.O. 885

11 PUBLIC RECORD OFFICE, LONDON

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

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defined in the proposed Bill. If this were done, the reference to the slave trade in the title and to the Slave Trade Acts in the first article of the Bill seems not to be necessary. It is true that the offence against which the measure is directed is a species of slave trade, but it is not the slave trade for the punishment of which the Acts referred to, the 5 Geo. 4. c. 113. and 6 & 7 Vict. c. 98., were expressly passed, that is, the African Slave Trade, and a reference to those Acts might possibly lead to some confusion. If any reference is necessary to those Acts, it might perhaps be better to say that persons committing the offences mentioned in the Act shall be deemed to be guilty of slave trading, and shall be liable to be tried in any of the Australasian Colonies, wherever the offence may have been committed, and if found guilty to be punished in the manner provided by these Acts. I will only add that the expression "any offence which, if committed in England, would be deemed to be a

· felony,' seems to be a very wide one, but whether or not it is too wide for the purpose is a question for the draftsman.

I

pass now to the second article of the Bill, the object of which is to enable the court to admit evidence which has been taken elsewhere than at the trial. The provision seems to be a very proper one, and might perhaps with advantage be extended to other offences besides those which are now under consideration. I object, however, to the mode in which the article is worded. By the term that the Special Commissioner or to the place Special Commissioners is or are "to repair with all convenient speed' "where the evidence is to be taken" it seems to imply that in every such inquiry a person is to be sent specially from the place where the trial is to be held, possibly at great expense, to take evidence on some matter which after all might be of no very great importance, and which might equally well have been obtained by a commission addressed to some person resident on the spot where the evidence is to be taken, or, in cases where some very simple point has to be established, such as the proof of a written document, even by affidavit. I am well aware that the article is almost a transcript of the fourth article of the Act of the 6 & 7 Vict. c. 98., but that does not remove the objection in my mind. I think, therefore, that the article, instead of being worded as at present, should empower the court to issue commissions for the exami- nation of witnesses at any place, whether within or beyond the limits of the Colony, and to allow such examinations, and, if it thinks fit, even affidavits to be used as evidence at the trial. I think that it may very safely be left to the judges of the Supreme Courts of the several Colonies of Australia not to exercise the authority conferred them unjustly, and it would give them full power to obtain evidence in

upon a wanner best suited to attain the ends of justice, and without great and unnecessary expense. I think, too, as I have already said, that it may be a question whether such a power might not with advantage be extended to other offences besides those now under consideration.

Passing over for the present the third article, which, however, is after all the most important, we come to the fourth article, which provides that an oath shall be administered in such form as will be most binding on the conscience of the witness. As it stands at present it is limited to the trial of offences under this Bill, but why it should not apply generally to all cases, civil as well as criminal, I confess that I am any such at a loss to understand. Indeed, I am somewhat surprised to find that provision is needed, as I should have thought that the power already existed in the Colonial courts of administering an oath in a manner which should be most binding upon the conscience of the witness, the only possible object, so far as I can see, of administering an oath at all.

The fifth article, on the other hand, is not limited to the offences under considera- tion, but generally to all criminal offences committed in any of the Australasian Colonies and their dependencies. It provides means by which a subpoena issued from the court of any one of the Colonies may be served in any of the others-in my opinion a very proper provision, but which might with greater convenience form part of a general Bill, and not merely of a measure directed to the punishment of criminal outrages committed by British subjects upon natives of the South Sea Islands.

The same remarks apply to the sixth article of the Bill. Articles 7, 8, and 9 are merely formal.

To return now to the third article, which proposes, as altered in red ink, to em- power your Lordships to pay out of Imperial funds all the expenses attending the trial of these offences, including the costs and remuneration of the witness, in case the prosecution shall have been authorised by the Governor. It is to this article that your Lordships' attention has been especially directed, and of which your approval is requested.

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In considering whether it would be desirable to accede to this application, it is important to observe that there are two distinct and separate offences against which the measure is directed, namely, first, the kidnapping of the natives and their con- veyance, it may be, to the Australian Colonies, or to the Fiji Islands, or elsewhere, and, secondly, their maltreatment after their arrival at the places to which they have been taken. Now, as far as regards the first class of offences, the kidnapping and trans- porting the natives, inasmuch as it would be committed beyond the territorial limits of the Colonies, and is a matter which concerns Imperial as intimately as, if not more Bo, than it does Colonial interests, I think there can be no reason why the expense of the prosecution should not be defrayed out of Imperial funds. This would, of course, apply to the masters and seamen of vessels which might be found engaged in carrying on this trade as well as to the merchants and shipowners who were implicated in it, especially if they were not resident in any of the Australasian Colonies; whether it would apply to those who were actually resident in those Colonies might, perhaps, be more a matter of doubt. On the other hand, where the offence belongs to the second class of cases, namely, outrages against the natives committed in an Australasian Colony by per- sons resident in that Colony, I am very clearly of opinion that the expense ought not to fall upon the Imperial, but upon the Colonial revenue. It is, no doubt, the duty of the Imperial Goverment to maintain, so far as its own subjects and interests are concerned, what is sometimes called the public (police ?) of the seas, but it is no part of the duty of the Imperial Government to provide funds for the punishment of offences committed by Australasians in an Australasian Colony; that duty properly devolves upon the Colonial Government, and the expenses ought, therefore, to be defrayed out of Colonial funds. I think, therefore, that the third article should be so altered as to empower your Lordships to pay out of Imperial funds the expenses of these prosecutions, not, however, making it obligatory upon you to do so, and leaving it to subsequent arrange- ment between the Colonies and the Mother Country as to the cases in which the expenses should fall upon the one or upon the other.

To sum up, then, the recommendations which I have ventured to make, I would suggest first that the reference to the slave trade and the Slave Trade Acts should be omitted as unnecessary, and as being likely to lead to confusion, the offences with which it is intended to deal being clearly defined in the Bill; secondly, I would, instead of making it obligatory in all cases, give power to your Lordships to pay the expenses of these prosecutions, leaving it to the Home and Colonial Government to settle in what cases the expenses should be paid out of Imperial and in what out of Colonial funds; thirdly, I would suggest that Articles 2, 4, 5, and 6 of the Draft Bill should, if it is thought desirable, be put into a separate Bill, and should be extended, not alone to trials for the offences under consideration, but to all criminal, and, perhaps, also to all civil, cases.

that a

proper

And, should your Lordships concur in these suggestions, it might be copy, or the purport of this report, should be forwarded to the Colonial Office with such directions as your Lordships may be pleased to give thereon.

I beg to return all the papers which were forwarded to me. All which is most humbly submitted to your Lordships' wisdom. Doctors' Commons, 8th June 1870.

(Unsigned.)

If a British subject commits any of the following offences, that is to say :-

(1.) Decoys, either by force or fraud, any native of the aforesaid islands on board any vessel, either on the high seas or elsewhere, for the purpose of importing such native into any island or place other than that to which he belongs or in which he was residing at the time of the commission of such offence;

(2.) Ships, embarks, receives, detains, or confines for the purpose aforesaid any native of the aforesaid islands on board any vessel, either on the high seas or elsewhere, without the consent of euch native, the proof of which consent shall be on the party accused;

(3.) Contracts for the shipping, embarking, receiving, detaining, or confining on board any such vessel for the purpose aforesaid any native without his consent, proof of which consent shall lie on the party accused;

(4.) Fits out, mans, navigates, equips, uses, employs, lets, or takes on freight or hire any vessel, or commands or serves or is on board any such vessel, with intent to commit, or that any one on board such vessel should commit, any of the offences above enumerated.