45

A.—3

9. But the peculiarity of the High Commissioner's Court, that the Judicial Commissioner in a capital case must necessarily be judge both of the facts and the law, with only the assistance of Assessors in regard to the former, would, I apprehend, be an insuperable barrier to any such appeal as is proposed. 10. The Supreme Courts of all the Australian Colonies administer the law of England without the modifications of law and procedure necessary in the region of the Western Pacific, which have been imposed by Order in Council. A trial for murder, without a jury, would be alien to their system of jurisprudence, and to enable them on appeal to find a murderer guilty without such trial, they must have additional powers. But to give such powers by Order in Council would not be palatable, or, probably, possible, in a constitutional colony. And the delegates know best whether there would be any chance of passing such a Bill through their respective Legislatures. 11. Moreover, unless we are to shut the door of justice on the whole native race of the Pacific, as against evil-doers amongst Her Majesty's subjects, and undo the good work which the High Commissioner's Court has already done, we must, and do, under the powers of the Orders in Council, receive evidence on affirmation of those who are either not Christians, or only nominally Christians, and do not understand the nature of an oath in the technical sense of the English law, weighing such evidence to the best of our ability in the equal scales of justice. But this also would be repugnant to the procedure of some, if not all, of the Supreme Courts of Australia. 12. An appeal accordingly from the High Commissioner's Court to such a tribunal would be from a Court which in these particulars administers justice from a higher standpoint, to one which does not, and cannot with its present or any powers which it is likely to obtain for the purpose, administer justice on the same principles. 13. Another difficulty I foresee relates to the execution of the judgment. The person accused of murder, if taken to Australia for judgment, ought, if the judgment be confirmed, to be executed there. I have noted how in one colony the fate of a notorious murderer and bushranger excited sympathy; in another, the keen and clamorous interest created by sentences of death. I can well imagine the public outcry if a colonist were condemned to death, without the intervention of a jury, for murdering a Polynesian in a far-off island, and how an attempt would be made to force the hand of the Governor and his Council, (who, as it was not a colonial crime, would have no constitutional right whatever to interfere,) to prevent the execution on their own soil. 14. The proposal of the delegates bristles with difficulties. It is by Imperial Courts, and Imperial Courts alone, that justice can be properly administered in the Western Pacific, and any appeal, where such is necessary, must be to Courts dealing with evidence on similar principles, and accustomed to trials with Assessors even in capital cases. 15. So much for the proposal itself; but I have something also to say upon the reason for such a proposal being made at this particular time. 16. Only one capital case has been tried in the High Commissioner's Court since its institution, —that of a half-caste Australian, tried and condemned at Eotumah for the murder of a native of Rotumah before its annexation to this colony. In this case the sentence of death was commuted by your Excellency to twenty-one years' penal servitude. 17. No white man has yet been tried for a capital offence in the Western Pacific; and, if the baser sort are not incited by the attacks of slanderers on the Court, and the encouragement given to them in quarters where we might have expected better things, I sincerely trust that the wholesome respect for law inspired by the existence of the High Commissioner's Court after only five or six important trials, (followed by no severe punishments,) will be sufficient to prevent any murder by British citizens in the Pacific. 18. As there seems to be no other cause for this particular resolution at this particular time, it has occurred to me as possible that the delegates have been influenced by the libels which they reprint, and have appended to their report. 7—A. 3.