CO885-(11-13) — Page 370

5921.

PUBLIC RECORD OFFICE

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Reference :-

CO. 885

12 PUBLIC RECORD OFFICE, LONDON

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

That as your Lordship was very anxious to be informed of the legal position of the Crown with regard to the republic, Mr. Malcolm was to request that we would take the matter into our consideration at the earliest moment possible.

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

Report

That under the circumstances stated in Mr. Malcolm's letter we are of opinion that the territory lately under the Government of the Transvaal Republic is to be regarded as conquered or ceded territory, and that Her Majesty has the same power, by Order in Council, of legislating for the inhabitants of this territory as she possesses in cases of conquered or ceded colonies.

We think that the case does not fall within the scope of the Falkland Islands Act (6 and 7 Vict. c. 13) as extended by 23 and 24 Vict. c. 121.

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

We have, &c.,

(Signed) JOHN HOLKER.

HARDINGE S. GIFFARD.

MY LORD,

No. 136.

(Hove KoNG}

LAW OFFICERS to COLONIAL OFFICE.

We are honoured with your Lordship's commands signified in Mr. Bramston's

Temple, 18th May 1877. letter of the 27th February last, stating that he was directed by your Lordship to transmit to us the following documents:-

1. A copy of a report from the then Attorney-General and Solicitor-General to the Duke of Buckingham and Chandos, dated the 12th October 1869, relating to a Hong Kong Ordinance 1 of 1868.

2. A copy of that Ordinance.

3. A copy of a despatch from the Governor of Hong Kong, No. 216, of the 27th December 1876, transmitting a Bill to amend the law relating to piracy. 4. A copy of this Bill.

2. That the Governor stated that he had withdrawn the Bill in consequence of a successful objection made by the Chief Justice in the Legislative Council to its 2nd and 3rd clauses. Those clauses were a transcript of the 2nd and 3rd sections of the Act 1st Vict. cap. 88, and the Chief Justice objected that "their embodiment in an "ordinance is beyond the powers of the local Legislature, they being sections of Imperial Acts which have reference to crime without the jurisdiction of the Colony, and are, as such, incapable of amendment by a local ordinance."

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3. That your Lordship proposed to answer in respect to those two clauses, that, if they had been passed into an ordinance, the Supreme Court could only have treated them as local enactments, confined in their operation to offences committed within the local limits of the jurisdiction of the Supreme Court, and as not affecting in any way the corresponding sections of the Imperial Act, or the effect of those sections in regard to offences committed within the jurisdiction of the Admiralty; and that it was unnecessary to withdraw the Bill on account of those clauses.

4. That MI. Bramston was to inform us that the clauses of that Bill numbered 5, 4. 6, and 7 were identical with the sections numbered 3, 4, 5, and 6 of the Ordinance 1 of 1868, upon which the Law Officers reported, on the 12th October 1868, that “· "must be construed as applicable to offences committed within the jurisdiction of the they Colony, and that this need not be expressed."

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5. That the high seas in the neighbourhood of Hong Kong and the waters adjoining, and within three miles of the Chinese coast, were not unfrequently the scene of piratical outrages committed by Chinese upon Chinese. That those crimes were often attended with the murder of one or two individuals, sometimes of nearly the whole crew and pas- sengers to the number of 20 or more. That the perpetrators of such offences had been from time to time apprehended in the Colony, and when the locality of the crime was proved to have been more than three miles from the nearest Chinese territory the Supreme Court had been in the habit of hearing and determining the matter as a case of piracy jure gentium. That if the locality appeared to be within the Chinese three- mile limit the Court had dismissed the case for want of jurisdiction.

6. That it had also happened that junks captured by pirates on the high seas from Chinese subjects resident in China, and articles the property of Chinese resident in the Colony, and taken by pirates from Colonial junks on the high seas, had been afterwards found in the Colony, and in such cases the persons in possession had been tried and punished under Ordinance 1 of 1868, section 6; and it was of the greatest importance to the Colony that some such power should exist, in order to check the prevalence of piracy in the neighbourhood of Hong Kong, and to prevent the Colony from becoming a place of refuge for pirates.

7. That Mr. Bramston was to state that your Lordship wished to ascertain whether the view taken by the Supreme Court of the local limit to its jurisdiction over Chinese pirates was correct.

8. That he was also to state that your Lordship apprehended that the proposed Bill was within the competence of the local Legislature; but that having regard to the terms

▲ 19916.-993. 95.-19/84.

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