CO885-(11-13) — Page 585

PUBLIC RECORD OFFICE

Reference :-

CO.

885

12 PUBLIC RECORD OFFICE, LONDON

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

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11. That Mr. Wingfield was to request that we would advise your Lordship- 1. Whether the Governor is now the sole judge of the Court of Sessions?

2. Whether the provisions of Ordinance 2 of 1866 relating to trial by jury and to

jurors are still in force, and if so, what is the qualification of a juryman. And that we would favour your Lordship with any observations which might occur to us for the guidance of the Governor, either as to the mode of trial of the case referred to in his Despatch, or as to the means of giving effect to the sentence should the accused be convicted and sentenced to imprisonment.

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

That-

Report

1. We are of opinion that the Governor is now the sole judge of the Court of Sessions.

2. In the copy of the Ordinance No. 3 of 1868 submitted to us, clause 16 runs as followe: "Ordinance No. 2 of 12th November 1866 is hereby abolished." Unless there is some mistake in this copy, it would appear that none of the provisions in No. 2 of 1866 are in force, and there are no corresponding provisions as to trial by jury in the substituted Ordinance of 1868.

3. It seems clear that the Governor cannot send the offender to the United Kingdom for trial, and must himself try him in Heligoland. We presume that the Governor is in possession of information with regard to the ordinary mode of proceeding at a criminal trial. If not, this information should be furnished.

Except by an arrangement with some other Colony under the Colonial Prisoners Removal Act 1869, we do not see how any sentence of imprisonment passed upon the prisoner can be lawfully carried out elsewhere than in Heligoland.

That Act has taken away the power which formerly existed of fixing the place of imprisonment for offences committed in a Colony in some other part of Her Majesty's dominions.

It may be worth consideration whether legislation should not be resorted to for the purpose of avoiding the difficulty which has arisen in Heligoland, and may arise in some other of our small Colonial possessions.

The Right Hon. the Earl of Derby,

&o.

&o.

&o

We have, &c.,

(Signed)

HENRY JAMES.

FARRER HERSCHELL.

3843.

MY LORD,

No. 292.

(HELIGOLAND.)

LAW OFFICERS to COLONIAL OFFICE.

We were honoured with your Lordship's commands, signified in Mr. Wingfield's

Royal Courts of Justice, 3rd March 1883. letter of the 28th ultimo, stating that with reference to his letter of the 19th February, and our report of the 27th February, on the subject of the trial of criminal charges in Heligoland, he was directed by your Lordship to inform us that, instead of the copy of Ordinance No. 3 of 1868 intended to be sent with his letter, a copy of the draft of that Ordinance was sent, and that, as would be seen from the copy therewith enclosed, the Ordinance as enacted did not contain any provision corresponding to clause No. XVI. of the draft which purported to abolish Ordinance No. 2 of 1866.

That Mr. Wingfield was therefore to request that as our answer to the second question submitted in his former letter was given under a mistake, we would at our earliest convenience favour your Lordship with a further report on that question.

That our report, and the enclosures to Mr. Wingfield's letter of the 19th ultimo, were enclosed therewith for reference.

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

Report

We

That the mode of legislation by the Ordinance of 1868 appears to have been rather peculiar. It does not repeal the Ordinance of 1866, but it contains a re-enactment of many of its provisions in which no change seems to be made. It may therefore be argued that it is substituted for the former Ordinance and impliedly repeals it. think, however, that the sounder view is that the two Ordinances, so far as consistent, must be read together, and that the provisions with reference to juries (amongst others) are still in force. We do not think the repeal of the Ordinance which created for certain purposes an election franchise renders it impossible to apply the jury clauses in existing circumstances. Article 27 of the Ordinance of 1866 does not enact that the jurymen shall be selected from persons possessing or entitled to the franchise, but it merely describes the qualification of a juryman by way of reference instead of directly.

We have, &c.,

(Signed)

HENRY JAMES.

The Right Hon. the Earl of Derby,

&c. &c.

FARRER HERSCHELL.

&c.

▲ 19916.-971. 95,-19/84

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