28429
Vic. C. 6 3 the Power of every Colonial Legislative to establish Courts of Judicature within its jurisdiction is established, but the question arises whether this Ordinance is not repugnant within the meaning of Section 2 of that act to the Imperial Act 12 & 13 Vic. c. 96 which already provides for the Trial of Piracy in the ordinary Courts of Criminal Justice and therefore for Trial by Jury.
I am disposed to think that the creation of a Court such as the one proposed is beyond the Powers of a Colonial Legislature.
(signed) Julian Pauncefote, Attorney General.
Hongkong 27th Aug", 1866.
(True Copy) Manin
Acting Colonial Secretary.
THE PIRACY ORDINANCE.
His Excellency the Governor introduced, The Ordinance to make provision for the more effectual suppression of Piracy making at the same time the following introductory remarks.
There can be no doubt that the Ordinance now before the Council is one of great importance, not merely because it constitutes a new Court in the Colony, but because it defines and deals with an important class of offences which had either not been previously punishable at all, or which had been not defined with necessary distinctness, I regard the first four clauses of Section VII as a valuable addition to your local code-being aimed at those evils which have principally disgraced this community-and rendered Hongkong infamous as an asylum of Pirates and unscrupulous robbers.
The man, who fits out a vessel to be employed in Piracy which must involve robbery-and will most probably lead to murder is in my mind the most guilty party-unless remaining at home in safety and shirking all personal danger makes him less criminal by rendering him more despicable.
I cannot deny that there are many such wretches both in this community and at Macao. The well-equipped Piratical Junk which recently followed the British barque "Buonaveature" from the Harbour and captured her in the evening of the same day was doubtless fitted out here-or if ever the Colony has a Police adequate to the requirements of the place the provisions alluded to will operate as a powerful check on those whom I regard as the lowest class of criminals--the fitters out of Pirates--the receivers of plunder and those who knowingly trade with, abet and encourage them.
If there were no such characters there could be no Pirates. I also consider from the experience of the past that those who are found here on board of vessels, that have committed Piracy within a certain period, which the Ordinance makes 21 days should have the burden thrown on them of proving their non-complicity in the crime.
The constitution of the Court embraces some of the naval element which has always been regarded as desirable in Piracy cases. The highest naval officers on the Station are members, provision being made that the President shall always be a lawyer.
Although as in all Admiralty Courts no Jury is required and the proceedings are thereby somewhat expedited still as the evidence against Prisoners must undergo a sifting somewhere previous to the trial and it is not desirable to adopt the Foreign practice of leaving the public prosecutor to do that in his own office, it will be sent in the first instance as usual, now before the Magistrates, I think on the whole it is frequently an advantage in this place to try offences connected with piracy without the intervention of a Jury, whilst another advantage is secured, viz: that of the court being easily convened for any day so that the least possible detention will be caused to witnesses.
You are aware that hitherto the loss of witnesses, from long delays has caused great inconvenience, I must add that in its present form the Ordinance differs considerably from that published in the Gazette. In fact that has been six times through the Printer's hands-owing to the difficulty of making it useful without exceeding the power of this Legislature.
It is impossible for this council to define Piracy which is an offence already defined by International Law. It would even be impossible for the British Parliament to give English courts except in English waters jurisdiction over any other sort of Piracy than that already known as such.
The ordinance therefore attempts nothing of that kind. It does however make certain new offences and appoints new punishments but it does this under the power of the council to make laws for the good government of the Colony-which laws are in force only within limits of the latter.
Therefore when the ordinance states, "If any person shall commit such and such an offence" it must be taken to mean only "any person" within the jurisdiction of the courts of the Colony-so far as regards confederating with Piracy and receiving their booty &c., this power will generally be found ample, as those crimes are for the most part committed within the Colony.
The statement will be more complete, if in reference to certain doubts expressed as to your power to constitute a new Court, I explain that last year a very important act (The 28 and 29 Vict Caps 63) was passed to remove Doubts as to the Validity of Colonial laws-and under the 5th Section of that Act every Colonial Legislature has full power within its jurisdiction to establish Courts of judicature-and to abolish and reconstitute the same and alter the constitution thereof and to make provision for the Administration of justice therein.
The Jurisdiction of the Supreme Court over cases of Piracy is given by Statute and it might be questionable how far this council can extend to a new Court a peculiar jurisdiction given specially to another.
I believe the enactment does enable a Colonial Legislature to constitute, and to remodel Courts with powers similar and equal to those of existing Courts. Without that enactment however I do not think the Court in question could be invested with power to deal with Piracy cases, and even with that enactment I shall not proclaim the Ordinance, if passed, but shall refer it to the consideration of Her Majesty's Government.
The Ordinance was then, after considerable amendments, and the addition of one or two clauses, read a third time and passed.
The Amended Bill, is ordered to be printed, when it will be duly published.
The Council then adjourned, until Tuesday next at 3 o'clock.
28429
Vic . C. 6 3 the Power of every Colonial Legislative to establish Cinto
are to establish Courts of Judicature
within its furiadiation is established, but
the question arises whether this Ordinance
is not repugnant within the meaning of
Section 2 of that act to the Imperial
Act 12 × 13 Nic. c.
c. 96
which already
in the
provides for the Trial of Piracy ordinary Courts of Criminal Justice and therefore for Trial by Jury.
I am disposed to think that the ~~
Creation of a Court such as
is
the one proposed
beyond the Powers of a Colonial
Legislature.
(signed) Julian Thuncfote,
Attorney General.
Houghing 27th Aug", 1866.
(True Copy) Manin
Acting Colonial Secretory.
Λίπ
THE PIRACY ORDINANCE.
His Excellency the Governor introduced, The Ordinance to make provision for the more effectual suppression of Piracy making at the ( same time the following introductory remarks.
There can be no doubt that the Ordinance now before the Council is one of great importance, not merely because it constitutes a new Court in the Colony, but because it defines and deals with an important class of offences' which had either not been previously punishable at all, or which had been not defined with necessary distinctness, I regard the first four clauses of Section VII as a valuable addition to your local code-being aimed at those evils which have principally dis graced this community-and rendered Hongkong infamous as an asylum of Pirates and unscrupu lous robbers. The man, who fits out a vessel to į be employed in Piracy which must involve rob. Í bery-and will most probably lead to murder is in my mind the most guilty party-unless remain- ing at home in safety and shirking all persona! danger makes him less criminal by rendering him more despicable. I cannot deny that there are many such wret ches both in this community and at Macao. The well equipped Piratical Junk
i
which recently followed the British barque **Buonaveature from the Harbour and captured in her the evening of the same day was doubtless Į fitted out bere-od if ever the Colony bas a Police adequate to the requirements of the place the provisions alluded to will operate as a powerful) check on those whom I regard as the lowest clasuj of oriminals--the Stters out of Pirates--the re-i ceivers of plunder and those who knowingly trade with, abet and, encourage them. If there were no such obaracters there could be no Pirates.* I also consider from the experience of the past i that those who are found here on board of ves- sels, that have committed Firacy within a certain period, which the Ordinance makes 21 days should have the burden thrown on them of pro- ving their non-complicity in the crime. The constitution of the Court embraces some of the naval element which has always been regard- ed as desirable in Piracy cases. The highest na- val officers on the Station are members, provision being made that the President shall always be a lawyer. Although as in all Admiralty Courts no Jury is required and the proceedings are thereby somewhat expedited still as the evidence aga- inst Prisoners must undergo a sifting some. where previous to the trial and it is not de- sirable to adopt the Foreign practice of leaving the public prosecutor to do that in his own office,
心し will be sent in the first ins-}
tance as usual, now before the Magistrates, I think on the whole it is frequently an advan- tage in this place to try offences connected with piracy without the intervention of a Jury, whilst another advantags in secured, viz: that of the court being easily convened for any day so that the least possible detention will be caused to witnesses.
?
9 ftlen
97.
509
You are aware that hitherto the loss of witnessce, from long delays has caused great inconvenisues, I must add that in its present form the Ordi- nance differs considerably from that published in the Gazette. In fact that has been six times. through the Printer's bands-owing to the diffi. culty of making it useful without exceeding the power of this Legislature, It is impossible for this council to define Piracy which is an offence vlready defined by International Law. It would even be impossible for the British Parliament to give English courte except in English waters jurisdiction over any other sort of Piracy than that already known as such. The ordinance therefors attempts nothing of that kind. It does however make certain new offeno:s and appoints new punishments but it does this under the power of the council to make laws for the good government of the Colony-which laws aret in force only within limits of the latter. Thore- fore when the ordinance states. If any person shall commit such and such an offence" is must be taken to mean only "any person" withinį the jurisdiction of the courts of the Colony-st so far as regarde confederating with Piracy and receiving their booty &c., this power will gener- j rally be found ample, as those crimes are for the most part committed within the Colony. The statement will be more complete, if in & ference to certaio doubts exotessed as to your power to constitute a new Court, I explain that last year a very important act (The 28 and 29 Viet Caps £3) was passed to remove Doubts as to the Validity of Colonial laws-and nader the! 5th. Section of that Act every Colonial Legislature has full power within its jurisdiction to esta~ blish Courts of judicature-and to abolish and "reconstitute the same and alter the constitution "thereof and to make provision for the Adminis- tration of justice therein." The Jurisdio- tion of the Supreme Court over cases of Pi-; racy is given by Statute and it might be quen. tionable how far this council can extend to a new Court & peculiar jurisdiction given specially to another. I believe the enactment does aa- able a Colonial Legislature to constitute, and to remodel Courts with powers similar and equal to to those of existing Courts. Without that enact- ment however I do not think the Court in quer. tion could be invested with power to deal with Piracy cases, and even with that enactment I shall not proclaim the Ordinance, if passed, but shall refer it to the consideration of Her Majesty'a Government.
re-
The Ordinance was then, after considerable amendments, and the addition of one ur two clau- ses, read a third time and passed.
The Amended Bill, is ordered to be printed, when it will be duly published.
The Council then adjourned, until Tuesday next at 3 o'clock.
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