PUBLIC RECORD OFFICE
C.O.8
Reference :-
885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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(.0. to F.O. section 16 of the Naturalization Act of 1870 (33 Vict. c. 14) persons naturalized in a British 14 Oct. 91. Colony could be regarded as British subjects in the Pacific Islands, and that your F.O. to C.O. Lordship would be glad to receive our advice upon the point.
9 July '92.
That Mr. Bramston was to enclose for our perusal, in connection with the question, High Com- extracts of correspondence as noted in the margin. That he was also to invite attention missioner's Memo. to the accompanying copy of a Report from the late Law Officers, dated 15th June 1892,* (.0. to F.O.
where the question was incidentally raised in connection with the ownership of a British 2June '92. vessel. F.O. to C.O.
That with regard to the Islands in class (c.), the further question arose whether the 11 July '92. jurisdicton of the High Commissioner's Court might be exercised over the native inhabitants of islands which had been taken under the protection of Her Majesty and over foreigners resorting thereto.
C.O. Memo. Feb. 91.
I... to F.O. 29 Jun.'87 General
That it was submitted that when an uncivilised people asked for or accepted the pro- tection of a civilised State, the assumption of a Protectorate by the latter carried with it I... to C.O. the acquisition of so much of the sovereignty of the uncivilised State as was necessary to Apl.91 make the protection effective, including the power of dealing judicially with persons of whatever nationality who oppressed or illtreated the subjects of the protected States, or committed crimes against the person or property of other foreigners who, for want of Act Berlin, competent Courts, were unable to obtain redress from the Rulers of the Protected State; and that Mr. Bramston was to invite our attention to the papers noted in the margin and to the extracts of correspondence above referred to; and to request that we would advise Act Brus your Lordship whether in protected islands (a.) foreigners, (b.) natives, might be made justiciable under the proposed Order, and, if so, whether the additional words shewn in red ink in the Appendix were sufficient for the purpose.
5.
General
sels, *90.
High Com- missioner,
That l'art XV. of the draft Order, relating to Births, Marriages, and Deaths, would also require careful consideration. That Mr. Bramston was to invite attention to the 21 Mar. 90, extracts of correspondence noted in the margin, which would place the matter fully before (.0,to F.O. us, and to request us to advise upon it.
June '90. That your Lordship would be glad to be advised generally upon the sufficiency of the F..to C.O. draft Order, and more particularly upon the special questions adverted to in Mr. Branston's
11 July '90. letter.
1..0.to C.0. We were further honoured with a letter from Mr. Bramston, dated 25th August last, 9 Oct. 190.§ stating that he was directed by your Lordship to transmit to us a copy of a Report by CO.to F.O. the late Law Officers (L.O. to C.O., 30th April 1891)|| and of the Order in Council to 14 Oct. 91. which it related, as your Lordship thought that it might be desirable that we should be aware of the steps taken in South Africa for enforcing jurisdiction in the British Protectorate south of the Zambesi.
F.O. to C.O.
July '92. €0. to F.O.
20 Aug. '92.
F.O. to C.O.
26 Aug. '92.
... to F.O.
Madagas-
(37.
14June 924
We have also the honour to acknowledge the receipt of a further letter from Mr. Bramston, dated 3rd September last, enclosing copy of a letter from the Foreign Office with the Report ¶ of the late Law Officers therein referred to.
We have taken the papers into our consideration, and, in obedience to your Lordship's commands, have the honour to
THAT in our opinion—
Report-
1. The exceptions (e.) and (d.) may properly be included in the proposed Order. It is by no means clear that they are justified by the terms of the Fugitive Offenders Act 1881, but we think that they are within the powers conferred by section 5 of the Foreign Jurisdiction Act 1890. The changes proposed may, we think, be regarded as adaptations and modifications of the Act within the meaning of that section.
2. It would, from a legal point of view, be proper, and in accordance with the terms of the British Settlements Act 1887, to make all persons in islands which have become part of Her Majesty's dominions, and have been licensed for limited periods as above mentioned, subject to the provisions of the Order.
The additions in the Appendix to Mr. Bramston's letter of 20th August last would not be sufficient for the purpose, but, after a conference with Mr. Bramston, we have approved of recitals and consequential alterations sufficient to show that the scheme of the Order is to extend to islands which are British possessions or under British protection. if, as a matter of policy, it is determined so to extend the Order, and we have identified the draft by our initials.
No. 12 in Vol. V.
† No. 209 in Vol. IV.
‡ No. 93a in Vol. IV.
No. 210 in Vol. IV.
No. 11a in Vol. V.
§ No. 192 in Vol. IV.
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any
3. Persons naturalised in the Australian Colonies are not British subjects for purposes outside the limit of the Colonies in which they are naturalised, and cannot properly be dealt with otherwise than as foreigners.
The definition in the Western Pacific Order of 1877 would not include such persons, and adds nothing to the meaning of the words "British subject." We think that, on the whole, it would be better to omit the definition altogether, leaving the general law to say who is, and who is not, a British subject. The instructions sent out to local authorities might explain the full force of the expression "British subject."
1. The right to make foreigners or natives in protected islands "justiciable" under the Order should only be exercised with the assent-express or implied-of their respective Sovereigns in cases where there is a Sovereign to give jurisdiction. As to the natives, the right will depend in each case upon the Treaties made with the local Sovereign Power, where there is such local Sovereign Power.
As to foreigners, the late Law Officers have advised that, in the case of Protectorates recognised under the Berlin Act of 1885, such assent by the signatory Powers may be inferred from the terms of that Act, and in this we concur.
It is going a considerable step further to imply assent in the case of Protectorates not contemplated by the Berlin Act, but the precedent set by that Act, and the general arguments in
of the jurisdiction of a Protecting Power in similar cases, make it support right, in our opinion, to assume that the signatories of the Berlin Act will not object to the exercise of jurisdiction over their respective nationals, and we think that such juris- diction may be assumed by the Order-if it be thought advisable as a matter of policy.
With reference to the alterations proposed in the Appendix, we refer to and repeat the observations contained in our answer No. 2.
5. We have considered the sections of Part XV. of the proposed Order, and see no reason in law why they should not stand as part of the Order. In particular, we are of opinion that section 115, validating past inarriages en masse, may, in point of law, properly be included in the Order. The section is in fact founded upon, and, in its material parts. is the same as, section 1 of the Foreign Marriages Act 1892, following the repealed Statute of 1849.
We have, &c.,
C. RUSSELL.. JOHN RIGBY.
The Most Honourable
The Marquess of Ripon, K.G.,
&c., &c.
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