PUBLIC RECORD OFFICE
C.O.8
Reference :-
• 885
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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In these circumstances, it appears to us that it may well be urged that there is a moral obligation, if not something more, to take some steps to give effect to Article VII, of the Convention of 1859.
But in measuring the extent of this obligation, the changed circumstances and the increased difficulties, due to the delay which has taken place, and which are the fruits of the non-ratification of the Treaty of 1863, may well be taken into con- sideration.
We have, &c.,
(Signed)
HENRY JAMES. FARRER HERSCHELL. J. PARKER DEANE.
21,136.
No. 32.
(NEW GUINEA.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD,
We were honoured with your Lordship's commands signified in Sir Robert
Royal Courts of Justice, December 11, 1884. Herbert's letter of the 31st October last, stating that he was directed to inform us that Her Majesty having assumed the Protectorate of a portion of the southern coast of New Guinea, it became necessary to consider by what means effect might be given to the statement made by Mr. Gladstone in the House of Commons on the 11th August last, viz., "that within the limits of it (the Protectorate) the jurisdiction of the Govern- "ment will be sufficient to afford protection to the natives against lawless action, by "whomsoever taken, whether by British subjects or foreigners."
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That by the Foreign Jurisdiction Act of 1843 (6 & 7 Vict. c. 94. s. 1), Her Majesty may hold, exercise, and enjoy any power or jurisdiction which Her Majesty now hath, or may at any time have, within any country or place out of Her Majesty's dominions, "in the same and as ample a manner as if Her Majesty had acquired such power or
jurisdiction by the cession or conquest of territory.'
That the preamble of the Act recited that such power or jurisdiction might be acquired by treaty, capitulation, grant, usage, sufferance, or other lawful means."
That Orders in Council had been at various times issued under that Act and sub- sequent amending Acts for establishing courts in foreign countries, e.g., China and Japan, for exercising over British subjects the jurisdiction possessed by Her Majesty in such countries; and that questions having arisen in South Africa as to the power of acquiring, by treaty, jurisdiction over the subjects of foreign civilized States, the Law Officers, on the 3rd of August 1880,* advised "that Her Majesty can by treaty with a native Chief obtain jurisdiction over subjects of foreign civilized States resident within such territories, but that the exercise of such jurisdiction might be made the ground "of diplomatic objection by the civilized State to whose subject it is extended, and that it should not, as a rule, be exercised 'without the concurrence of that State given generally or in the particular case.'
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That the Foreign Jurisdiction Act, 1878 (41 & 42 Vict, c. 67. s. 5), conferred power and jurisdiction over British subjects resorting to countries not subject to any Goveru- ment from whom Her Majesty might obtain power or jurisdiction by treaty or any of the other means mentioned in the Foreign Jurisdiction Act, 1843.
That it might be taken for the purposes of the present reference, that there was not in New Guinea any Government from whom Her Majesty might obtain power and jurisdiction by any such means.
That one of the reasons, if not the principal reason, which induced Her Majesty to assume a Protectorate in New Guinea had been the desire to preserve the Natives in the enjoyment of their lands, and to protect their persons and property from outrage at the hands of unprincipled white men, and that with that object to obtain and enforce, for the present, full control of all settlement upon the protected area.
That there would appear to be sufficient power under the Foreign Jurisdiction Acts, 1843-1878, to control the actions of British subjects by means of Orders in Council passed under those Acts; but that a jurisdiction which conferred no protection on British subjects against the acts of Natives, and which conferred no protection on either Natives or British aubjects against the acts of foreigners, subjects of civilized States, did not meet the necessities of the present case.
That it therefore became important to consider whether the protected area should not be brought more directly under the sovereignty of the Queen, not with any desire for the acquisition of the soil, but as the best means of securing an effective and legal control over all persons resorting thereto.
That Sir R. Herbert was accordingly to request us to favour your Lordship with our opinion-
"1. Whether legal jurisdiction over persons other than British subjects can in any way be acquired within the protected area if it does not become British soil?
• No. 232 in Miscellaneous No. 51.
15927.-3. 35-12/85.