5782.
No. 56.
M
(AUSTRALASIA.)
March 18, 1893.
(E.) Sir J. Pauncefote (F.) To ditto
(No. 109)
May
4.
JJ
(No. 45. Telegraphic)
(G.) Sir J. Pauncefote
(No. 231)
(H.) Colonial Office
(I.) Sir J. Pauncefote
+
December 1, December 5, December 21, (No. 9) January 15, 1894.
"3
"
"
(J.) Colonial Office
-
(K.) "American Law Review
February 17, July-August, 1891.
Also Colonial Office, March 1 and March 10 (sent subsequently).
[After reciting the above reference of 8th March 1894, on the subject of the Coquitlan," the Law Officers reported as follows:-}
We have taken the papers submitted to us in Mr. Bertie's letter of the 8th instant into our consideration, and have the honour to
Report-
That if in this case the judgment of condemnation had been founded only on the transhipment of cargo outside the 3-mile limit, we should have thought that no useful end could be obtained by requiring an appeal to be brought. We find, however, that condemnation has also been decreed for breach of a section (No. 3109) against which no objection can be brought on international grounds, and if that ground of condemnation can be supported, the question of jurisdiction, which has been the subject of diplomatic representation, would not arise. We think, therefore, that there
is reasonable cause why the United States' Government should insist upon the owners of the "Coquitlan" proceeding with their appeal.
The interpretation put by Lord Ripon on our report of the 18th March 1893 is in accordance with our meaning.
Royal Courts of Justice,
16th March 1894.
We have, &c. (Signed)
C. RUSSELL. JOHN RIGBY.
LAW OFFICERS to FOREIGN OFFICE.
MY LORD,
Royal Courts of Justice, March 28, 1894. We were honoured with Earl of Rosebery's commands signified in Sir Edward Grey's letter of the 5th instant, transmitting to us the accompanying printed correspondence respecting the pearl fisheries in the Netherlands East Indies, and stating that several questions were raised in this correspondence, but that those on which our opinion was now sought arose on the Netherlands India Ordinance No. 261 of the 5th October 1893.
That Lord Rosebery's attention had been called to this Ordinance by the letter of the 1st ultimo from the Pearling and Trading Company.
That the Company wished his Lordship to protest to the Netherlands Government on the grounds stated in their letter, which amounted practically to the contention (a) that it was against the comity of nations to refuse access to ports for repairs and supplies, and (4) that the terms of the Ordinance amounted to such refusal, because it imposed on vessels found with pearl shells, &c., on board, the onus of proving that such pearl shells &c., were fished outside territorial waters, and also that the Ordinance conferred the right of search within territorial limits.
That there existed between Great Britain and the Netherlands a treaty which appeared to bear on this case, the Treaty, namely, of the 17th March 1824, a copy of which was inclosed in Sir Edward Grey's letter." That Articles I., II., III., and IV. of this Treaty granted general freedom of commerce and most-favoured-nation treatment, but that Article VII. stated that-
"The Molucca Islands, and especially Amboyna, Banda, Ternate, and their immediate dependencies, are exempted from the operation of the Ist, IInd, IIIrd, and IVth Articles, until the Netherlands Government shall think fit to abandon the monopoly in spices; but if the said Government shall at any time previous to such abandonment of the monopoly allow the subjects of any Power, other than a native Asiatic Power, to carry on any commercial intercourse with the said islands, the subjects of Her Britannic Majesty shall be admitted to such intercourse upon a footing precisely similar.
Sir Edward Grey further stated that it was not known to what extent the monopoly in spices still existed, but that a Proclamation was issued by the Governor-General of Netherlands India on the 8th September 1853, declaring the ports of Amboyna, Banda, and Ternate, to be free ports. But that whether Articles I., II., III. and IV. of the Treaty of 1824 were in force or not, its provisions were not referred to in the repre- sentations made by the Netherlands Chargé d'Affaires at this Court in regard to the proceedings of the Pearling and Trading Company given at pages 10 and 11 of the printed correspondence, and that such being the case, it would probably be more convenient to consider the terms of the Netherlands Ordinance apart from Treaty étipulations.
Sir Edward Grey therefore requested us to give our opinion as to-
Whether the terms of the Ordinance in question were contrary to the comity of nations, or were reasonably open to objection on the part of Her Majesty's Govern- ment on any other, and, if so, what specific grounds.
Sir Edward Grey at the same time requested that we would furnish the Foreign Office with any observations of a more general character which we thought might be of assistance in the conduct of the case.
We have taken the matter into our consideration, and have the honour to
Report
That, in our opinion, the terms of the Ordinance in question are in no way contrary to the comity of nations, nor is there anything in the Ordinance itself reasonably open to objection on the part of Her Majesty's Government,
079871.-14.
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PUBLIC RECORD OFFICE
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If, in the enforcement of the Ordinance, any case of unfair or unequal treatment of British subjects should arise, it should be considered with reference to its special circumstances, and dealt with accordingly.
It is to be noticed that the Ordinance, by its striot limitation to territorial waters, departs from the broad ground taken by the Resident in his communication of the 22nd March 1893.
The Right Hon, the Earl of Kimberley K.G.,
We have, &c. (Signed)
C. RUSSELL. JOHN RIGBY.
MY LORD,
&c.
&c.
&c.
ANNEX.
Netherlands India Government Ordinance No. 261 of October 5, 1893. (TRANSLATION.)
ARTICLE 1. If any persons not belonging to the indigenous population are found fishing for pearl shells, mother-of-pearl shells, or bêche-de-mer in the territorial waters of Netherlands India without permission from, or in the name of, the Governor- General, the master of the vessel used for the purpose, or his substitute, shall be liable to a fine of 10 fl. to 1,000 fl., or imprisonment from six days to two years in case of Europeans, and to a similar fine or rigorous imprisonment from six days to two years in case of natives and those assimilated with natives.
The implements with which the offence is committed, as well as the shells or bêche- de-mer fished in contravention of the Regulations, may be declared forfeited.
The vessel with which the offence is committed is liable for the fine and costs of proceedings, and the vessel may be seized and sold in case of nonpayment.
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Art. 2. By the expression "fishing for pearl shells, mother-of-pearl shells, and bêche-de-mer" in this Ordinance is meant the obtaining of these articles out of the sea in whichever way or by whatever means or implements.
Art. 3. If a vessel not belonging to and not manned by persons belonging to the indigenous population, and not having the permit referred to in Article 1, be found within the territorial waters of Netherlands India with pearl shells, mother-of-pearl shells, or bêche-de-mer on board, or having on board implements for fishing for these products, the master or his substitute shall be considered as having infringed Article 1 of these Regulations unless he can give proofs to the contrary.
Art. 4. The Commanders of Dutch men-of-war, the masters of vessels of the Dutch colonial marine and of dispatch-boats, and persons acting under their authority, are empowered to detect transgressions of this Ordinance. The persons mentioned in the foregoing paragraphs are authorized, in order to maintain the enactments of this Ordinance, to search vessels the passengers or crew of which are suspected of committing or contemplating actions in contravention of this Ordinance as long as such vessels are within the territorial waters.
The Articles 2, 3, 4, and 5 of Ordinance of the 20th August 1865 (Government Gazette No. 84), are applicable in connection with such search.
Art. 5. This Ordinance will come into force on the date of insertion in the Govern- ment Gazette of Netherlands India.
Buitenzorg, October 5, 1893.
Issued the 7th October 1893.
(No. 56A.)
(NEW SOUTH WALES.)
LAW OFFICERS to FOREIGN OFFICE.
Royal Courts of Justice, April 3, 1894. We were honoured with the Earl of Rosebery's commands signified in Sir H. Percy Anderson's letter of the 9th February last, stating that he was directed to transmit to us the papers noted in the accompanying list respecting the case of the Costa Rica Packet," in regard to which we reported on the 19th April and the 29th September last.
46
That Sir H. Percy Anderson was to call our special attention to the Report and evidence communicated by Sir Saul Samuel on the 23rd January last, and in particular to the evidence at pages 23 and 24 respecting the measure of damages.
That Sir H. Percy Anderson was to request that we would take the matter into our consideration, and favour the Secretary of State with our opinion as to whether the further papers which came before us for the first time led us to modify, and, if so, to what extent, the opinions expressed in our previous Reports.
We have also the honour to acknowledge the receipt of Mr. Bertie's letter of the 27th ultimo, stating that he was directed to transmit to us a Despatch (Sir H. Rumbold's No. 19, Commercial, of the 19th March 1894) which had recently been received from Her Majesty's Minister at the Hague with reference to Mr. Carpenter's clairn.
That the Despatch in question contained the answer of the Netherlands Government to a note which was addressed to them, in accordance with the opinion expressed in our Report of the 19th April 1893.
That a copy of that note was enclosed in Sir H. Rumbold's Despatch No. 31, Commercial, of the 20th May 1893, which would be found among the papers relating to the case transmitted to us in Sir H. Percy Anderson's letter of the 9th February 1894.
That the question submitted to us in that letter related more particularly to the claims of the owners and crew of the vessel to compensation for the interruption of her voyage, which resulted from the arrest of the master, but that the reply of the Netherlands Government affected these claims equally with that of Mr. Carpenter.
That Mr. Bertie was accordingly to request us to take the further Despatch from Sir H. Rumbold into our consideration in connection with the papers previously transmitted to us.
In obedience to the Earl of Rosebery's commands, we have the honour to
Report-
That we have carefully considered the evidence given before the Select Committee of the Legislative Council of New South Wales and the report of the Committee, and we find nothing which would cause us to depart from the opinions already given by us.
There is nothing to show that the treatment of Mr. Carpenter in this case in any way differed from that which he would have experienced if he had been a Dutch subject.
The Dutch law appears to allow of arrests in cases of plausible suspicion, and preliminary examinations of the accused and of witnesses of the nature which took place in Carpenter's case. There is in this nothing so contrary to the practice of civilized nations as to enable Her Majesty's Government to found thereon a claim for compensation.
The real mischief arose from the distance between the place where the warrant was issued and that at which it was executed.
The Resident at Ternate appears to have had no power, according to Dutch law, either to exercise any discretion as to executing the warrant, or to receive bail for the subsequent appearance of the accused.
It is of the greatest importance that Her Majesty's Government should not put forward any claims for compensation which they would not be prepared to entertain on behalf of foreigners; and, although a similar state of circumstances is not likely to
o 79871.-20. 25.-5/94.