PUBLIC RECORD OFFICE
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Reference :-
C.O.885
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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In obedience to the commands of the Secretary of State, we have the honour to
Report
That, having regard to the great importance of the questions raised in the papers to which our attention has been called, we have thought it right to delay our answer to those questions until we were in a position to submit to Her Majesty's Government a complete memorandum upon the subject.
The particular form of Protectorate with regard to which our opinion is now asked is somewhat new to international relations, and no discussion of any such form of But the main government can be found in the earlier writers upon international law.
principles which must be regarded are, in our opinion, well settled; one of these is that the right of jurisdiction over the persons found in any territory belongs only to the power which is entitled to rights of territorial sovereignty. Those rights may be acquired by conquest, by cession, or by settlement, and where they exist, the power which possesses them is clearly entitled to exercise jurisdiction over all persons coming within the limits of the territory, whether they be natives of such territory, or the subjects (other than diplomatic representatives) of a foreign power.
But no power has any right, according to international law, to exercise jurisdiction over the subjects of another power, unless they are residing within its own territorial
limits.
The municipal laws of any country cannot affect or enlarge its rights under inter- national law, and it is not material, therefore, to refer, in a discussion of this question, either to the terms of the Foreign Jurisdiction Acts of this country, or to the provisions of the German Imperial Decrees.
The English Acts show that it is doubtful whether, but for the authority given by them, Her Majesty would have any effective jurisdiction even over her own subjects in foreign countries, and it is clear that no provision in those Acts could operate to subject to English law any subject of a foreign State. The proposition now contended for by the German Imperial Government is that it is competent to that Government to establish what may be properly called a Consular Protectorate in a foreign country, that is to say, a Protectorate in virtue of which the German Government does not claim the rights, or accept the liabilities, of territorial sovereignty. And it is claimed that, upon the establishment of that Consular Protectorate, the subjects of all other powers become amenable to the jurisdiction of the officer appointed to administer such Protectorate, and to the tribunal of the Protectorate by which the Consular Court is replaced.
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It is curious to note, in regard to this claim, the opinion given by Dr. Krauel to the German Goverument, and confidentially communicated to Mr. Scott (Memorandum, 10th March 1886) that, in those islands and places to be assigned to German influence by the declaration of demarcation, but not yet notified as placed under the German flag, Her Majesty's High Commissioner could certainly continue to exercise civil and criminal jurisdiction over British subjects, but that it would be almost impossible to permit this in regard to places where German sovereignty or Protec- torates had already been established, as it would be a clear infringement of the rights of territorial sovereignty." It will be observed that the claim to exercise an exclusive jurisdiction is put upon the ground which we conceive to be right in law, but which does not exist in the case of the Protectorate in question.
..
We are of opinion that the claim above stated is not justified by the accepted principles of international law. Substantially the same question has been on four occasions considered by our predecessors in office. In August 1880 the Attorney and Solicitor General expressed their opinion that Her Majesty could by treaty with a native Chief obtain jurisdiction within his territories over subjects of foreign civilised States resident within such territories, but the exercise of any such jurisdiction might be made the ground of diplomatic objection by tho civilised Stato to whose subject it was extended, and it should not, as a rule, be exercised without the concurrence of that State given generally or in the particular case.
Again, in December 1884. the same Law Officers advised that legal jurisdiction over persons other than British subjects could not, under the circumstances (there being no native Power capable of ceding to the Queen jurisdiction over the natives, or, in fact, over any one), be acquired within the protected area in question unless it became British soil. In August 1885 the then Attorney and Solicitor General (Sir Richard Webster and Sir John Gorst) used the following words: "That, in our opinion, neither the native African Chiefs nor any of the bodies of freebooters settled
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"in Bechuanaland could, either by treaty or sufferance, confer upon Her Majesty
jurisdiction over the subjects of any civilised Power other than Great Britain.".
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The effect of the duly promulgated Order in Council of the 27th January 1885 is "to enable the High Commissioner to constitute tribunals in Bechuanaland having jurisdiction over British subjects and protected natives, but not over the subjects of "The Bestuur, or any other establishments in Stella-
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"other civilized States."
« land which Sir Charles Warren has created or sanctioned, so far as they are consistent "with the Order in Council, may be regarded as the particular methods by which he has thought fit to exercise his jurisdiction over Britishi subjects and protected natives "in Stellaland. In this sense, but in no other, they have a legal status. The subjects
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of the other civilised States, who are in Stellaland, cannot be interfered with by the Bestuur, or any tribunals that may be instituted under its authority, without the consent of their own Governments."
And finally, in April 1886, other Law Officers (Sir Charles Russell and Sir Horace Davey) expressed their opinion that "as against the Chiefs (assuming that they have sovereign territorial authority, and do not merely exercise tribal personal authority as Chiefs) Her Majesty can lawfully acquire by treaty with them the right to "exercise civil and criminal jurisdiction over subjects of civilised powers other than Great Britain within the territories of the Chiefs; but as against the subjects of "other civilised powers, we think that the jurisdiction (whatever may be its theoretical limits) should be exercised with, and cannot safely be exercised without, the assent of the Power concerned, given generally or in the particular case."
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We entirely concur in the advice which has been given to Her Majesty's Government by our predecessors in office for the guidance in its action in reference to territories over which this Government exercises a Protectorate, and we are of opinion that the German Government should be notified that the claim to exclusive jurisdiction over British subjects in territories with respect to which it only exercises a Consular Pro- tectorate is not one which Her Majesty's Government can admit.
We have, &c.,
(Signed) RICHARD E. WEBSTER.
EDWARD CLARKE.
LIST OF PATERS.
1. Memorandum (Sir E. Hertslet). October 30. 1882. Confidential No. 4689.
2. Colonial Office, January 8, 1886.
3. Sir E. Malet, No. 142, March 13, 1886.
4. Count Hatzfeldt, May 11, 1886.
5. Sir E. Malet, No. 270, June 26, 1886.
6. Count Hatzfeldt, June 28, 1886.
7. Mr. Scott, No. 315, August 10, 1886.
8. Count Hatzfeldt, August 29, 1886.
9. Sir E. Malot, No. 432, October 23, 1886.
10. Ditto, No. 445, November 6, 1886.
11. Law Officers to Colonial Office, August 3, 1880.
12. Ditto, November 15, 1884.
13. Ditto, December 11, 1884. 14. Ditto. July 20, 1885.
15. Ditto, August 10, 1885.
16. Ditto, April 21, 1886.
17. To Sir E. Malet, No. 63A, January 26, 1886. 18. To Mr. Scott, No. 370, July 31, 1886.
Page 30Page 31
13,737.
No. 94.
(TRINIDAD.)
SIR,
LAW OFFICERS to COLONIAL OFFICE.
Royal Courts of Justice, 11th July 1887. We were honoured with Mr. Edward Wingfield's letter of the 14th ultimo, stating that he was directed by you to transmit to us a copy of a despatch from the Governor of Trinidad, enclosing a letter from Mr. James O'Brien, in which he raised the question of the validity of the cancellation of his commission as a Justice of the Peace.
That Mr. Wingfield was also to enclose copies of the Trinidad "Summary Adminis- tration of Justice Ordinance, 1868," and of the Letters Patent dated 1st October 1880, constituting the office of Governor and Commander-in-Chief of Trinidad and its Dependencies, and to call our attention especially to section 4 of the Ordinance, and to clauses 10 and 11 of the Letters Patent.
That shortly before the date of the notification in the "Trinidad Royal Gazette," set out in Mr. O'Brien's letter, Mr. O'Brien had been suspended by the Governor under clause 11 of the Letters Patent from the office of Postmaster-General of the Colony, on a charge of embezzlement, and that his suspension had been confirmed by the Secretary of State.
That the notification purporting to cancel his commission as Justice of the Peace was not issued under instructions from the Secretary of State, and was not reported by the Governor to the Secretary of State. That Mr. Wingfield was to request that we would furnish you with our opinion on the following points :-
(i.) Whether Mr. O'Brien was effectually deprived of his office of Justice of the Peace by the notification in the "Trinidad Royal Gazette" of the cancellation of his commission:
(ii) If not, whether such cancellation could be made effectual by confirmation
through the Secretary of State for the Colonies :
(iii.) If Mr. O'Brien was still a Justice of the Peace, how he could be removed from
that office.
In compliance with the request contained in Mr. Wingfield's letter, we have the
honour to
Report,
of
(i.) That in our opinion Mr. O'Brien was not effectually deprived, of his office of
Justice of the Peace by the notification in the "Trinidad Royal Gazette" the cancellation of his office': (ii) Such cancellation can be inade effectual by Her Majesty determining his office of Justice of the Peace, which he holds only during Her pleasure, by signification of Her pleasure, under the Sign Manual that his office should determine : (iii.) Until Her Majesty's pleasure is signified to the contrary, Mr. O'Brien is a Justice of the Peace, and he can be removed only by such signification of Her Majesty's pleasure.
We have, &c.,
(Signed)
The Right Hon. Sir Henry Holland, Bart., M.P.,
RICHARD E. WEBSTER. EDWARD CLARKE.