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entitled to take cognizance of offences committed on any portion of the territory outside of the gates of the garrison, and requesting our opinion on this subject.
After attentively perusing all these papers, we entertain no doubt whatever that the courts established in Gibraltar are entitled to take cognizance of offences committed on any portion of the territory between the gates of the garrison and the extremity of the English lines. This territory is clearly held in full sovereignty by the English Crown, and is included in the charters establishing courts with jurisdiction over the garrison and territory of Gibraltar.
We entirely concur in the view taken of the subject by Mr. Attorney General Cochrane, and we do not see any foundation for the scruples of Chief Justice Field or his predecessors.
Even under the strictest interpretation of the Treaty of Utrecht, this ground, which is indispensably necessary for the occupation and defence of the fortress, is to be considered part of the fortress of Gibraltar; and by our exercising jurisdiction over it there is no pretence for saying that we assume any territorial jurisdiction, or open any communication with the surrounding country, against the stipulations of the treaty.
To gain the object desired by the Governor, as to the ground between the fortress and the British lines, there appears to us to bo no occasion whatever for any new treaty with Spain, or any new charter from the Crown.
The Lord Glenelg, J- Campbell.
&c. &c. &c. R. M. Route.
(7.) Joint Opinion of the Attorney and Solicitor General, Sir John Jervis and Sir John Romilly, that an assault on a Native in a Colony, by British Subjects, is not triable in the Court of Queens Bench in England.
Temple, April 16, 1850. My Lord,—We were honoured with your Lordship's command, contained in Mr. Hawes' letter of the 6th ultimo, in which he stated that he was directed by your Lordship to request that we would favour your Lordship with our joint opinion on the following questions:— Certain officers of Her Majesty's 1st West India Regiment are charged with having given directions for the ill-usage of a native of Cape Coast Castle, named Robert Erskine, by torture, in order to compel him to disclose an alleged robbery.
That the circumstances, as far as known to your Lordship, are detailed in the statements of Robert Erskine, and certain other parties, enclosed in a despatch from the Acting Governor of Cape Coast Castle, dated October 22, 1849, a copy of which is annexed, and also in the declarations of other parties taken before a Committee of the Aborigines' Protection Society, and likewise annexed.
That Captain Murray and Lieutenants Bingham and Stuart, the officers whose names are mentioned in the account of this transaction, are now believed to be on service in the West Indies.
That the papers relating to this transaction have been submitted by the Commander-in-Chief to the Judge Advocate General, whose letter thereupon is likewise annexed.
That the questions which the Judge Advocate General recommends to be submitted to us are—whether the persons who are charged with having tortured Robert Erskine can be tried and punished for it, either upon an information exhibited by the Attorney General, or upon an indictment found in the Court of Queen's Bench in England; and would it be proper in a case of this kind to resort to such mode of trial?
Mr. Hawes then stated that your Lordship requested that, in the event of our being of opinion that such proceedings might be taken, either on information or indictment, we would further favour your Lordship with our opinion in what manner, and by what authority, the examination of the witnesses and other preliminary proceedings should be taken, with a view to the committal of the accused parties for trial?
In obedience to your Lordship's commands, we have perused the several documents transmitted to us, and have the honour to report that, in our opinion, the persons who are charged with having tortured Robert Erskine cannot be tried and punished in this country by information or indictment in the Queen's Bench; at common law no such proceeding could be instituted in this country, and we are of opinion that the case is not within the provisions of the statute 42 Geo. 3, c. 85.
The Right.Hon. Earl Grey, John Jervis.
&c. "&c. &c. John Romjxly.
(8.) Joint Opinion of the Queen's Advocate, Sir John Dodson, and the Attorney and Solicitor General, Sir John Romilly and Sir A. E. Cockburn, on the construction of the Statutes 59 Geo. 3, c. 44 (an Act relating to offences committed in Honduras), and 12 & 13 Vict. e. 96 (an Act to provide for the Prosecution and Trial in the Colonies of Offences committed within the Jurisdiction of the Admiralty).
Doctors' Commons, March 14, 1851.
My Lord,—We are honoured with your Lordship's commands, signified in Mr. Merivale's letter of the 5th instant, stating that ho was directed to transmit to us an extract of a despatch from the Governor of Jamaica, with copies of so much of its enclosures as relates to the trial and conviction at a Commission Court held at Honduras of two persons for piracy on the high seas.
Mr. Merivale is pleased to request that we would take these papers into consideration, and report to your Lordship our joint opinion as to the validity of the objections which we should find to have been taken to the conviction in this case.
In obedience to your Lordship's commands, we have taken the papers into consideration, and have the honour to report that wo think that the first objection, viz.: "That the Commission Court, according to the statute 59 Geo. 3, c. 44, and the letters patent of the Crown, by which it is constituted, has no jurisdiction to try, eo nomine, for 'piracy,' and that the subsequent imperial statute of the 12 & 13 Vict. c. 96, which the Chief Justice of Honduras seems to think has given that jurisdiction to the Court, only contemplated the trial by any colonial court of the same offences when committed on the high seas which the same court might previously have tried if committed upon any inland waters," is valid.
We are of opinion that the second objection, viz.: "That the crime of which the prisoners were convicted was committed before the Act of the 13 & 14 Vict, was passed," is invalid, inasmuch as the prisoners were charged after the passing of the statute of 12 & 13 Vict . c. 96.
We think that the third objection, viz.: "That British Honduras does not come within the meaning of the 5th clause of the 12 & 13 Vict., as being neither a colony, island, plantation, dominion, fort, or factory of Her Majesty," is not free from doubt; but upon the whole, notwithstanding whatever may have been the original state of things in that settlement, we are disposed to think that at present it has become a part of the dominions of Her Majesty, and that, consequently, the third objection is invalid.
The Right Hon. Earl Grey, John Romilly.
&c. &c. &c. A. E. COUKBTJUK.
(9.) Joint Opinion of the Queen's Advocate, Sir John Dodson, and the Attorney and Solicitor General, Sir John Romilly and Sir A. E. Cockburn, that British Courts have no Jurisdiction in respect of illegal acts committed against Emigrants on board Foreign Vessels.
Lincoln's Inn, February 26, 1851. My Lord,—We were honoured with your Lordship's commands, contained in Mr. Merivale's letter of the 19th February instant, in which he stated that he had been directed by your Lordship to transmit to us an accompanying copy of a letter from the Colonial Land and Emigration Commissioners, suggesting a difficulty which might probably arise as regards the jurisdiction possessed by British or colonial courts over acts committed against emigrants on the high seas under a foreign flag; and he was to request that we would take this letter into our consideration, and report to your Lordship our joint opinion upon the point raised by the Commissioners.
In obedience to your Lordship's commands, we have considered the various documents submitted to us, and have the honour to report that we are of opinion, that if an emigrant be illegally treated on the high seas by the masters or officers of a foreign vessel, he would not be able to obtain redress from the colonial courts. In other words, that these courts would not, nor could any British courts, have jurisdiction over acts committed on the high seas under a foreign flag, and that the recent Act 12 & 13 Vict. c. 96, facilitating the trial in colonies of offences committed on the high seas would not meet the case.
The Right Hon. Earl Grey, John Romilly.
&C. &C. &c. A. E. COCKBURn.
(10.) Joint Opinion of the Queens Advocate, Sir J. D. Harding, and the Attorney and Solicitor General, Sir Fred. Thesiger and Sir Fitzroy Kelly, on the same question.
Doctors' Commons, September 21, 1852.
Sir,—We are honoured with your commands, signified in Mr. Merivale's letter of the 14th instant, stating that he was directed to request that we would furnish you with our joint opinion upon the following questions.
It appears that a number of Chinese, emigrating in a vessel under the American flag, have risen upon the captain and crew, murdered most of them, possessed themselves of the vessel, changed her course, plundered, and finally abandoned her.
It need hardly be said that they did not themselves hoist any flag, or assume any national character.
That an American officer, who has captured some of the supposed criminals, desires that they should be tried by the Supreme Court at Hong Kong; but, as the seizure of the ship and murder of the crew was effected by subjects of a foreign Power, and under a foreign flag, it appears very doubtful whether this can be done. That the acting Attorney General of the colony is of opinion, on the grounds stated in his letter (of which a copy is annexed), that it can; but, on a point of so much delicacy and importance, he is desirous of acting with the sanction of the Law Officers of the Crown in this country.
That the questions, therefore, on which our opinion is requested are:—
1. Whether any British authority could, consistently with the law of nations, take cognizance of such a case as that above described? and,
2. Whether the Supreme Court at Hong Kong possesses that authority?
That on the first of these questions it appears unnecessary to trouble us with any observations. That on the second, it is desirable to inform us that the Legislature of Hong Kong is, by the Governor's commission (from which an extract is annexed), authorized to make such laws and ordinances as may be required for the peace, order, and good government of the colony.