PUBLIC
RECORD
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OFFICE
CO.
Reference :-
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
Mr. Geddes was in this occupation of the islands, and had been so for ten days, when on the 26th June 1876 Mr. Roberts, acting as the agent of Mr. Lord, an American citizen, came to the islands for the purpose of removing guano, and Mr. Roberts then ran up the Flag and claimed possession in the name of the United States.
It is not said when Mr. Lord discovered the guano.
The Act of Congress (August 18, 1856) under which Mr. Lord claims, is as follows "When any citizen of the United States discovers a deposit of guano on any island, rock, or keg, not within the lawful jurisdiction of any other Government, and not occupied by the citizens of any other Government, and shall take peaceable possession thereof, and occupy the same, such island, rock, or keg may, at the discretion of the United States, be considered as appertaining to the United States, and the land and naval forces may be employed by the President to protect the rights of such discoverers or their assigns."
In our opinion the islands were on the 26th of June, the date of Mr. Lord's agent taking possession, within the lawful jurisdiction of and occupied by a subject of Great Britain, and neither the warrant granted by the United States Consul-General at Melbourne nor the Act of Congress could oust the jurisdiction nor dispossess the subject of Great Britain.
We are not aware of any formalities which should have been gone through by the Colonial Government in order to make the possession and occupation of the islands absolute and indefeasible.
The issuing of the licenses and the fact of occupation were, in our opinion, within the authority given to the Governor by his Commission, and the islands were, in the words of the Act of Congress, within the lawful jurisdiction of the British Government and occupied by a subject (that is a citizen) of the British Government.
The claim of the United States Government to the Lacepede islands cannot, therefore, in our opinion, be supported by international law.
In answer to the specific questions raised by the Secretary of State for the Colonies-
1. A Royal Commission expressly authorising a Governor to govern a territory
in the name of and as belonging to the Crown of England is not questionable by any
power which has not previously to the issue of such Commission asserted any claim to such territory.
We assume in thus answering the question-
(a.) That the territory is "res nullius":
(b.) That actual possession and occupation are taken of the territory.
2. The power of a consul residing in a Colony is governed within the Colony by the law of the Colony.
In the present case, however, Mr. Lord contends that the Act done by him was done outside the Colony, where the law of the Colony did not consequently reach.
The Act of Congress, under which the whole of the proceedings of Mr. Lord are alleged to be justified, provides that any American citizen may do that which Mr. Lord has done on behalf of the United States, and no question seems to us to be properly raised as to the extent of a consular authority.
3. But we think the acts committed and attempted to be justified by the United States citizen, Mr. Lord, against the jurisdiction of the Government justify that Government in withdrawing his exequatur as Consul.
In concluding this report, we submit to your Lordship for your consideration the general principles on which (as appears from Mr. Herbert's letter of the 16th January last)-
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Her Majesty's Government has hitherto proceeded in annexing to a Colony by the
Queen's Letters Patent such islands adjacent to it, at greater or less distances as it may be found necessary to treat as British possessions."
And we refer also to the instance given by Mr. Herbert that-
All islands within 60 miles of the coast of Queensland were thus annexed to that Colony,"
And that—
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It had not been supposed necessary to take formal possession of each island in the name of the Queen.”
Since, in our opinion, the validity of a mere declaration to annex a territory is in the present state of international law extremely doubtful, we respectfully suggest that in all cases past and future actual possession should be taken, that if possible the place
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annexed should be occupied, and if occupation be impracticable, that evidence by inscription or in some other way should be left of possession being taken, and that the unoccupied islands should be visited as frequently as possible by Her Majesty's ships.
We have, &c., (Signed)
The Earl of Derby,
&c. &c.
JOHN HOLKER. HARDINGE GIFFARD. J. PARKER DEANE,
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