CO885-(11-13) — Page 645

PUBLIC RECORD OFFICE

།། ། ། ། །

C.O.

Reference :-

• 885

13 PUBLIC RECORD OFFICE, LONDON

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

The Law Officers and Mr. Staveley Hill are accordingly requested to advise :-

1. If Colonies possessing responsible Government are at liberty with or without an Act of the Colonial Legislature, but in either case independently of an Act of the Imperial Parliament, to provide and equip armed vessels for harbour defence or other service within Colonial waters?

2. In the event of a Colonial armed vessel duly equipped under section 3 of the Colonial Naval Defence Act being present at a South Sea Island at a time and under circum- stances in which the commander of one of Her Majesty's ships would be justified in proceeding against the natives by act of war, what would be the legal position of such Colonial vessel if the commander were to proceed actively against the natives by shelling their villages, landing armed parties, or taking other similar steps against the inhabitants of the island?

Report.

1. We think that Colonies possessing responsible Government are at liberty inde- pendently of an Act of the Imperial Parliament to provide and equip armed vessels for harbour defence, and police and other like purposes within, and their use being limited to, the waters of such Colonies respectively.

Whether an Act of the Colonial Legislature would be necessary or not depends upon the powers possessed by the Executive Government in the particular Colony.

2. The answer to this question depends upon what authority is to be assumed as having been given in respect of the Colonial vessel. By section 3 the Legislative Authority of the Colony may make provision for providing, maintaining, and using vessels of war "subject to such conditions and for such purposes as Her Majesty in "Council from time to time approves."

"

The legal position, therefore, of any Colonial vessel, equipped under the section referred to, must depend upon the conditions and purposes approved by the Order in Council.

(September 1884.)

(Signed)

HENRY JAMES,

FARRER HERSCHELL. A. S. HILL.

16,750.

No. 23.

(Hong Kong).

LAW OFFICERS to FOREIGN OFFICE.

MY LORD,

We were honoured with your Lordship's commands, signified in Sir Julian

Royal Courts of Justice, 18th September 1884. Pauncefote's letter of the 2nd ultimo, stating that he had the honour to transmit to us, by your Lordship's direction, the papers noted in the accompanying list, relating to the case of 11 fugitives from justice at Hong Kong, whose extradition was claimed by the Chinese Government under Article XXI. of the Treaty of Tien-tsin.

That the case of those fugitives had already been submitted to us with reference to the question how far Her Majesty's Government would be justified in continuing to surrender Chinese fugitives under the Treaty, without satisfactory guarantees against the application of torture of any kind or for any purpose whatever.

That Sir Julian was, in the first place, to refer us to our Report of the 22nd July 1882, and to the reference on which it was founded, from which we would perceive that the fugitives in question (who originally numbered 13, and were charged with murder) were released on habeas corpus, by reason of some informality in their committal and in the return to the writ.

That the fugitives appeared to have left the Colony after their release, but having subsequently been found again in Hong Kong, they were re-arrested in 1883 on demand of the Viceroy of Canton.

That Sir Julian was now to invite our attention to a despatch from the Governor of Hong Kong to the Colonial Office, No. 358 of the 31st December 1883, containing a full report of the proceedings on the new arrest of the fugitives, which resulted in two of them being discharged, and the remaining 11 being committed to prison to await the orders of the Governor respecting their extradition. That at that juncture the Roman Catholic Bishop of Hong Kong (Mgr. Raimondi) interposed, asserting that the prisoners were innocent, and that a correspondence ensued, which would be found in the inclosures to the Governor's despatch.

That the case having been referred home for instructions as to the action to be taken under the circumstances, the Governor of Hong Kong was directed to cause any further evidence to be taken in the case which Bishop Raimondi might be prepared to adduce in support of his allegation that the charge against the prisoners was a false one, and to report whether the "proof of guilt" was, on the whole, such as to satisfy the minds of the Council. (We were referred, as to the proof of guilt, to Law Officers' Report of the 24th February 1863, and case of the Attorney-General of Hong Kong v. Kwok Asing, 5 Law Rep., Priv. Co. Appeal Cases, p. 199.)

That Sir Julian was next to refer us to the despatch of the Governor of Hong Kong to the Colonial Office, No. 178 of the 17th May 1884, giving a full report of the further proceedings in the case, and requesting to be informed of the decisions of Her Majesty's Government thereon. That the following questions now arose :—

1. Was the proof of guilt such as to render it incumbent on Her Majesty's Government to direct the extradition of the prisoners in execution of Article XXI. of the Treaty of Tien-tsin?

2. Would Her Majesty'e Government, in view of the adverse opinions of the Governor and Executive Council of Hong Kong, be justified in holding that there was not such proof of guilt as might be required under Article XXI. of the Treaty ?

3. If not, would Her Majesty's Government be justified in declining to surrender the prisoners without an undertaking, in writing, that no torture of any kind or for any purpose whatever be inflicted upon them, and that Her Majesty's Consul should have access to the prisoners at any time that he might require it-before, during, or after the trial?

That Sir Julian was also to request that we would take the papers transmitted therewith into our consideration, and that we would favour your Lordship with our opinion on the questions submitted in Sir Julian's letter, and with any general observations we might have to offer on the case. That Sir Julian was also to request our immediate attention to the case, as the Governor of Hong Kong was awaiting telegraphic instructions.

A

13927.-9. 35.-12/85.

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