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PUBLIC RECORD OFFICE
Reference :-
CO.
885
Colonial Office. May 3, 1877. Memoranda of September 30
1880: May 12, 1077
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
2
3. If the rights of free navigation under the Convention of 1825 still existed, we should doubt very much whether the conveying a prisoner through American waters, and still more the landing him in custody upon American territory, would be within the terms of the Convention.
4. And being of opinion that the rights of free navigation now depend upon the 26th Article of the Treaty of Washington, which expressly states the navigation to be open for the purposes of commerce, we think a prisoner cannot lawfully be conveyed through Alaska by the Stickine River.
5. The demand of the United States for the release of Peter Martin cannot in our opinion properly be rejected. His surrender should be conceded on the ground that he was as a prisoner conveyed through United States territory, and no reference need be made to the doubtful point whether the attempted escape and re-capture were made within the boundary of the States or of the Dominion.
6. For the unauthorised conveyance of a prisoner through the territories of a foreign power is an infraction of the rights of sovereignty of such power, and entitles that power to demand the liberation of the prisoner, even after he has left those territories in which he was detained, and from which he has been taken without the authority, and in violation, of the law of the country.
7. And this right to demand the liberation of a prisoner conveyed without authority through the territory of a foreign power is not affected by the fact that the prisoner is a subject of the foreign power.
The Earl of Derby,
&o.
&c.
(Signed)
We have, &c.,
J. HOLKER. HARDINGE GIFFARD. J. PARKER DEANE.
7561.
No. 141.
(WESTERN AUSTRALIA.)
LAW OFFICERS to FOREIGN OFFICE.
MY LORD,
We are honoured with your Lordship's commands, signified in Lord Tenterden's
Temple, 12th June 1877. letter of the 4th instant, stating that he was directed by your Lordship to request our opinion upon the following point:-
That in the autumn of 1856, the naval officer commanding in the East Indies was directed to take possession, in Her Majesty's name, of the Cocos Islands, the islands which he was intended to annex being a group of that name, situated in the bay of Bengal, north-east of the Andaman Islands.
That Captain Fremantle, the officer who received the instructions, acting as he believed, in accordance with them, took possession in 1867 of a group known as the Keeling or Cocos Islands, lying in quite a different situation, twelve degrees south of the equator.
That the islands, at the time of the occupation, were in the possession of a Mr. Ross, whose father had founded a colony on them in 1824; that gentleman was appointed by Captain Fremantle superintendent of the new possession of the Crown; in conse- quence of the British annexation of the islands Mr. Ross was deprived by the Netherland authorities in the East of the right which he had theretofore exercised of trading under the Netherland flag with the Netherland Colonies.
That Mr. Ross appeared to have suffered from the loss of his coasting trade, and to have made representations to that effect to Her Majesty's Government. It was in consequence, at one time contemplated to inform the Netherland Government confi. dentially that the annexation of the islands was a mistake, and that no further step would be taken for the recognition of Captain Ross in the capacity of Lieutenant- Governor, or for the exercise of any act of authority in them if he were permitted to resume his coasting trade; upon consideration, however, that idea was abandoned, and matters remained in statu quo.
That in 1866 Mr. Ross was reported to be acting as Governor and proprietor of the Settlement, and carrying on trade under the British flag with the neighbouring British and Netherland Settlement. No foreign power appeared at any rate to have claimed the islands.
That it had recently been pointed out that they might become valuable possessions, and under those circumstances the inquiry had been put to the Foreign Office by the Colonial Office whether any further action was required to establish Her Majesty's right to them.
That it appeared to your Lordship that the act of taking possession of them by Captain Fremantle being the result of a mistake in his conception of his instructions, it was therefore unauthorised, and that there was no subsequent ratification of it by the Crown.
The inchoate title of the Crown was not perfected by a de facto occupation, and the appointment of Mr. Ross conferred on him by Captain Fremantle was not confirmed, your Lordship was consequently doubtful whether the title of Great Britain to those islands could be satisfactorily maintained against any nation which might impugn it, and before replying to the inquiry of the Colonial Office your Lordship would be glad to be favoured with our opinion on the point.
That papers bearing on the subject were enclosed therewith.
In obedience to your Lordship's commands we have the honour to
Report
That so long as the occupation of these islands by British subjects and the Govern- ment of the islands under British authority and by British laws is not ratified and confirmed by Her Majesty's Government, we are of opinion the title of Great Britain. to the islands is open to doubt, and therefore disputable or liable to be impugned by any foreign nation.
The Right Hon. the Earl of l'erby,
&c.,
&c.
&c.
(Signed)
We have, &c.,
JOHN HOLKER. HARDINGE GIFFARD. PARKER DEANE.
▲ 18314-138. 25.-12,84.