1
2
other hand, necessarily ill-defined. But it seems to follow logically, and by close analogy from the generally-admitted results of the nexus, that the protected Power may well be held not to be a "State" within the purview of such an enactment as the Foreign Enlistment Act; and any other view might involve this country not infre- quently in considerable embarrassment. If Madagascar could only obtain redress from a foreign Power through France it would seem a reductio ad absurdum to hold that the provisions of the Foreign Enlistment Act are applicable.
On the other hand, it is argued that the treaty between France and Madagascar of 1885, whatever may be its proper meaning and intent, must be held to have lapsed as between those two Powers on the outbreak of hostilities. It is, moreover, pointed out that "The Foreign Enlistment Act, 1870," applies to any friendly "foreign State defined in that enactment, viz. :—
"
as
"Any foreign Prince, Colony, province, or part of any province or people, or any person or persons exercising or assuming to exercise, the powers of government in or over any foreign country, Colony, province, or part of any province or people."
This definition was evidently taken from section 2 of the Act 59 Geo. III., cap. 69 (Paper C), which was repealed by "The Foreign Enlistment Act, 1870" (Paper D).
It remains to consider any precedents which appear to be relevant to the matter under review, and in this connection I am specially to call your attention to the following papers :--
1. The Queen's Proclamation of Neutrality in the contest between the Government of the United States of America and certain States styling themselves the Confederate States of America, 13th May 1861 (Paper E).
2. Report by the then Law Officers of the Crown, dated the 7th December 1877, as to the bearing of "The Foreign Enlistment Act, 1870," on the conveyance of troops in a British vessel for the suppression of a rebellion in Peru (Paper F).
16
It is assumed, however, that the antepenultimate paragraph of this Report, which states that "the use of a ship to convey troops belonging to a friendly Power would, "under sections 4 and 30, be, in our opinion, an offence against The Foreign Enlistment Act, 1870,'" must be read secundum subjectam materiam, and was scarcely intended by the then Law Officers to be of universal application. It would seem that the term "rebels was probably meant only to cover such "rebels" as by establishing a more or less stable Government, and by obtaining general recognition as belligerents, might fairly be said to have constituted themselves into a separate "Stato" within the meaning of that expression as generally employed.
3. Report by the then Law Officers of the Crown, dated the 7th June 1889, stating that, in their opinion, the Damara region, although a Protectorate of the German Government, is not part of the dominions of that State within the meaning of section 11 of the Foreign Enlistment Act, but that it is a friendly foreign State within the meaning of section 11, taken together with section 30 of the Act (Paper G).
I am to inclose copies of the replies given by Sir Edward Grey in the House of Commons (Papers H, I, J, K), and the draft of a letter addressed to Baron de Courcel on the 15th February 1895 (Paper L), as showing how the matter stands at the present moment between the Government of Her Majesty and that of the French Republic.
am also to enclose an extract from the "Times " containing a letter from Professor Holland, and I am to call your attention to the newspaper of the 22nd instant, arguments contained in the 2nd and 3rd paragraphs (Paper 'M).
I am to request that you will favour Lord Kimberley, at your earliest convenience,
your opinion on the following points :-
with
Generally
:-
1. Whether a protected State, with which and with whose Protecting State Her Majesty is at peace, is a friendly foreign State within the meaning of "The Foreign Enlistment Act, 1870":
(a.) When such protected State is at peace with the Protecting State.
(b.) When a state of hostilities is recognised by Her Majesty's Government to exist between such protected and protecting State.
Particularly-
2. Whether, having regard to the mutual relations of Great Britain, France, and Madagascar, your general answer to question 1 applies in terms to the situation now existing between those three Powers; and, if not, in what respects and to what extent it will require qualification.
3
List of Papers.
(A.) Treaty between France and Madagascar, December 17, 1885. (B.) Declarations between Great Britain and France, August 5, 1890.
(C.) "Foreign Enlistment Act, 1819."
(D.) "Foreign Enlistment Act, 1870."
(E.) Proclamation of Neutrality, May 30, 1861.
(F.) Law Officers' Report, December 7, 1877.
(G.) Law Officers' Report, June 7, 1889.
(H.) Question and Answer in House of Commons (Mr. Henniker Heaton), February
7, 1895.
(I.) Question and Answer in House of Commons (Mr. Spicer), February 7, 1895. (J.) Questions and Answers in House of Commons, February 19, 1895.
(K) Question and Answer in House of Commons (Mr. Bowles), February 21, 1895. (L.) To Baron de Courcel, February 15, 1895.
(M.) Extract from the "Times" (Professor Holland), February 22, 1895.
(N.) Law Officers' Report, February 12, 1895.
(N.) Memorandum by Mr. Davidson, Q.C., February 18, 1885.
Report.
1. In our opinion, a protected State with which, and with whose Protecting State, Her Majesty is at peace, may be a friendly State within the meaning of the Foreign Enlistment Act:
(a.) When such protected State is at peace with the Protecting State, as when, under section 11 of the Foreign Enlistment Act, it is sought to prevent a filibustering expe- dition against such protected State, though it is unnecessary to determine, for the present purpose, whether, in such a case, the "dominions" to be attacked should be regarded as dominions of the protecting or of the protected State.
(b.) When a state of hostilities exists between two such States, and they are recog nised by Her Majesty's Government as belligerents, the Foreign Enlistment Act would apply to either.
That Act being merely machinery for carrying out the international obligations of Her Majesty's Government, there is no duty upon Her Majesty to use that Act until those international obligations arise.
We consider that, in the present mutual relations of Great Britain, France, and Madagascar, Her Majesty's Government is not bound to enforce the provisions of the Foreign Enlistment Act. At present the state of hostilities which exists has not touched British interests, nor assumed proportions different either in degree or quality from hostilities in which Great Britain has been engaged, and of which foreign nations have not taken any public notice.
The Right Hon. the Earl of Kimberley,
&c.
&c.
&c.
Royal Courts of Justice, March 8, 1895.
We have, &c.
R. T. REID.
FRANK LOCKWOOD.
I have, &c.
H. PERCY ANDERSON.
Į
PUBLIC RECORD OFFICE
Reference :-
C.O. 885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
toli ali ̧
31.
21
[
1. 1.
¿. t..
ダ