PUBLIC RECORD OFFICE
TIT
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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Colonial Office letter of the 31st January 1890, on the seizures of the French vessels Virginie" and "Amazone" for contravention of the Newfoundland Bait Act, it could, having regard to the English doctrine and practice on such matters, be safely contended by Her Majesty's Government that a private vessel, with a duly authorised officer on board, and flying the proper flag, and under special instructions, could not rightly make such a seizure as that now under consideration.
2. Whether the Russian Government were justified by international law in subjecting the subjects of a foreign friendly State to informal tribunals such as those indicated by the procedure in the case of the "Araunah."
3. Whether the fact of the canoes which belonged to the vessel committing an offence, assuming them to have been within Russian jurisdiction, warranted the seizure of the “Araunah" if she was not, at the time of the committal of the alleged offence or at the time of the capture, within such jurisdiction.
That your Lordship would also be glad to be furnished with any general observations we might have to offer on the case.
We have taken the papers into our consideration, and, in obedience to your Lordship's commands, have the honour to
Report
1. That, in our opinion, a private vessel with a duly authorised officer on board, and flying a proper flag, and under special instructions, may lawfully make a seizure such as that now under consideration
2. We see nothing inconsistent with international law in the establishment by the Russian Government of such tribunals as those indicated by the procedure in the case of the "Araunah.”
3. Even if the "Araunah" at the time of the seizure was herself outside the three- mile territorial limit, the fact that she was, by means of her boats, carrying on fishing within Russian waters, without the prescribed license, warranted her seizure and confiscation according to the provisions of the municipal law regulating the use of those
We have, &c., (Signed)
waters.
LIST OF PAPERS.
RICHARD E. WEBSTER. EDWARD CLARKE.
(A.) Correspondence respecting the capture of the British schooner Araunah" off Copper Island by the Russian merchant steamer " Alexander II.," (confidential No. 5777).
(B.) Further correspondence in continuation of cohfidential No. 5777.
(C.) Sir R. Morier, No. 79, March 19, 1890.
(D.) To Colonial Office, March 28, 1890.
(E.) Colonial Office, April 17, 1890.
(F.) Law Officers (with papers then reported on). July 19, 18×9.
(G.) Confidential Print (Newfoundland Fisheries, section No. 15, 1889). (H.) Colonial Office, January 31, 1890.
(1.) Law Officers (with papers then reported on, April 2, 1890.
8893.
No. 178.
(WESTERN PACIFIC.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD,
We were honoured with your Lordship's commands, signified in Mr. J. Bramston's
Royal Courts of Justice, May 9, 1890. letter of the 25th March last, stating that he was directed by your Lordship to transmit to us copy of a despatch from the High Commissioner for the Western Pacific, with its enclosures, in which, for the reason stated, he suggested an amendment in the Treaty of Friendship, &c., between Her Majesty and the King of Tonga, 1879, together with a copy of a correspondence between the Colonial Office and the Foreign Ŏffice on the subject.
That Mr. Bramston was to request that we would take those papers into our consideration and favour your Lordship with our opinion on the following points:-
(1.) Whether a proceeding to obtain divorce would be a "civil suit meaning of Article III. (d) of the Treaty, or whether in order to give the High Commissioner's Court jurisdiction to dissolve marriages it would be necessary not only to create the jurisdiction by an Order in Council, but to get such jurisdiction recognised by an amendment of the Treaty.
within the
(2.) Whether we concurred in the opinion that British subjects ought not to have the option of being tried by Tongan Courts, and
(3.) Whether we thought it necessary that a further alteration should be made giving the High Commissioner's Court exclusive divorce jurisdiction where the husband was a British subject. If so, such jurisdiction should, it was assumed, be also conferred by the new Western Pacific Order in Council which was being prepared to take the place of the existing Orders.
That, as then advised, your Lordship was disposed to adopt the view taken by Sir J. Thurston in regard to the alteration of paragraph (b) of Article III. of the Treaty.
That your Lordship was also inclined to concur with Lord Salisbury that the proposed alteration of paragraph (c) would be sufficient for the purpose, and that, looking to all the circumstances of the case, Sir J. Thurston should be instructed not to prosecute Gray for bigamy.
the case.
That your Lordship would be pleased to be favoured with any observations which might occur to us on any further points which might suggest themselves to us in We have taken the matter into our consideration, and, in obedience to your Lordship's commands, have the honour to
Report
1. That, in our opinion, a proceeding to obtain divorce would be a civil suit within the meaning of Article III. (d) of the Treaty, and to enable the High Commissioner's l'ourt to dissolve marriages it is only necessary to confer such jurisdiction upon it by Order in Council, no amendment of the Treaty being required.
We observe, however. that if Sir J. Thurston's proposed alteration of Article III. (b) were adopted, British subjects in Tonga might altogether escape liability to punishment for some offences. Adultery, for instance, is not a criminal offence cognizable by British law, and it is not clear that it could be considered a violation of a Tongan law relating to local police. The Treaty as at present drawn undoubtedly covers all offences against Tongan law.
2. The question whether British subjects should retain the option of being tried by Tongan Courts is one of policy, but we do not see any conclusive reason for depriving them of that option, which does not to us appear unreasonable.
3. We think it desirable that the High Commissioner's Court should have exclusive · jurisdiction only in cases where the Respondent, whether husband or wife, is a British subject, and that will be the case under the Treaty where divorce jurisdiction is conferred by Order in Council on that Court.
We concur that, under all the circumstances, of the case, Sir J. Thurston should be instructed not to prosecute Gray for bigamy.
The Right Hon.
Lord Knutsford, G.C.M.G.,
&c. &c.
&c.
We have, &c.,
(Signed)
RICHARD E. WEBSTER.
EDWARD CLARKE.
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61207.-18. 25,-5/90.