28
on this point Lord Salisbury would be glad to receive any observations or suggestions which you may be good enough to offer.
With reference to 2, it is evident that if Wei-hai Wei were still to be regarded as an integral part of the Chinese Empire, Her Majesty might continue to exercise jurisdiction over British subjects under the China Orders in Council. Such a contention would, however, be clearly unadvisable, since foreign civilised nations would thereby be induced to maintain that their respective extra-territorial jurisdictions over their own nationals, which existed at Wei-bai Wei as in other parts of China before the leasing of the territory to Great Britain were still in force.
It appears clear to Lord Salisbury that Her Majesty's Government must claim jurisdiction within the limits of the leased territory over all persons-British, Chinese, and foreigners alike-and that the question is on what ground such a claim can most suitably be based.
The nearest precedent to the case now under discussion would appear to be that of Cyprus, which is not British territory, but is now under the administration of this
country.
The only formal renunciation of the Capitulations as regards Cyprus was that made by Austria-Hungary, who signed a Declaration to that effect in 1880, when Her Majesty's Government signed a similar Declaration in respect of Bosnia and Herzegovina.
The French Government stated "that they adhered to the English judicial reform
in Cyprus." The question was not formally raised by other Powers.
A Memorandum prepared by the Sub-Librarian of this Department on the 13th October last, respecting the surrender of extra-territorial jurisdiction in Cyprus, and containing an account of the negotiations on the subject with the French and Austria- Hungarian Governments is annexed.
On the 14th September, 1878, an Order in Council, copy inclosed, was passed constituting a High Commissioner and a Legislative Council in Cyprus, with power to the former, with the advice of the latter, to make Laws, Ordinances, &c., and declaring the Levant Orders in Council to be abrogated in the island.
On the 17th January, 1879, the High Commissioner of Cyprus, with the advice of the Legislative Council, passed an Ordinance for the establishment of a High Court of
Justice.
Section 10 of this Ordinance, of which a copy also is inclosed, under the heading of "Jurisdiction," was as follows:-
you
All jurisdiction, criminal and civil, over all persons and in all cases, other than such as would have been under the sole jurisdiction and authority of the Ottoman Courts if the said Convention (that of the 4th June, 1878, between Great Britain and Turkey) had not been made, shall, subject and according to the provisions of this Ordinance, be vested in and exercised by the High Court."
I am to request that you will take this matter into consideration, and that will favour Lord Salisbury with your opinion as to the procedure which should be adopted with a view to providing for the exercise by Her Majesty of jurisdiction over British subjects and foreigners at Wei-hai Wei, and as to the instructions which should be sent to Admiral Sir E. Seymour for his guidance in the matter pending a definite settlement of the question by Order in Council or otherwise, as may appear best adapted to meet the case.
Lord Salisbury would also be glad to receive any observations of a general character which you may wish to offer on the subject.
29
Enclosure 2 in No. 28.
THE LAW OFFICERS OF THE CROWN to the MARQUESs of Salisbury,
MY LORD,
(Received February 22.)
Royal Courts of Justice, February 22, 1899. We were honoured with your Lordship's commands signified in Mr. Bertie's letter of the 17th instant, transmitting to us, by direction of your Lordship, a letter from the Admiralty, inclosing a copy of a communication received from the Commander-in-Chief on the China Station, in which he asks for instructions in the matter of the administration of justice at Wei-hai Wei.
Mr. Bertie requested that we would take this matter into consideration, and that we would favour your Lordship with our opinion as to the procedure which should be adopted with a view to providing for the exercise by Her Majesty of jurisdiction over British subjects and foreigners at Wei-hai Wei, and as to the instructions which should be sent to Admiral Sir E. Seymour for his guidance in the matter, pending a definite settlement of the question, by Order in Council or otherwise, as might appear best adapted to meet the case.
In obedience to your Lordship's commands we have taken the matter into our consideration, and have the honour to
Report-
That in our opinion Wei-hai Wei is at present part of Her Majesty's dominions in virtue of cession from China.
An Order in Council should be passed as soon as possible making provision for the administration of justice there.
All
persons in the territory ceded, whether Chinese, British, or subjects of other Powers, are alike amenable to British Tribunals and British law, as the Queen may direct.
So far as the Chinese are concerned, provision should be made for maintaining. Chinese law and customs, so far as they are not repugnant to humanity or morality.
British subjects and subjects of all other countries should be under a system of British law, say, such as prevails in Hong Kong.
The administration and enforcement of the law should, unless it be considered proper to appoint a Judge, be confided to the officer in command.
Sailors and soldiers should of course remain subject to military and naval law. Until such an Order in Council be passed the officer in command should, we think, be instructed himself to deal with all crimes committed by British subjects, or subjects of countries other than China, according to naval law. He should not in any case send them to the Consul at Chefoo.
He should also deal in like manner when necessary with crimes committed by Chinese, having regard to their usages, but probably in most cases the Headmen of the villages will be able to deal with Chinese crime.
We have, &c.,
RICHARD E. WEBSTER.
ROBERT B. FINLAY.
Admiralty
List of Papers.
I have, &c.,
FRANCIS BERTIE.
...
February 3, 1899. July
1, 1898. 13, 11 September 14, 1878.
January 17, 1879.
Convention (Treaty Series No. 14, 1898)
Memorandum, Mr. "Streatfeild [Confidential No. 7052] October
Order in Council
Ordinance (Cyprus)
LORD SALISBURY,
Enclosure 3 in No. 28.
JURISDICTION AT WEI-HAI WEI
Minutes.
By the Wei-hai Wei Convention China has given to us sole jurisdiction within the leased territory. The question is how we are to proceed to give to our officials legal authority to exercise such jurisdiction.
Mr. Davidson, in his Minute on the Law Officers' Report of the 22nd February, points out some technical obstacles to the carrying out of their recommendations,
Besides these technical difficulties there is the political objection of openly treating
the Wei-hai Wei leasehold as part of Her Majesty's dominions in virtue of cession from
PUBLIC RECORD OFFICE
Reference :-
TPIEC.O. 882
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
PUBLIC RECORD OFFICE, LONDON