10475.
The Commander of the cruiser should be informed that it is a condition of being permitted to use the port that he should abstain from transmitting or procuring the transmission of any telegrams relating to the conduct of warlike operations.
The Company should also be informed of the views of the Government, and would probably itself establish a censorship in accordance with those views of the telegrams tendered for transmission.
There is, however, no general power on the part of Her Majesty's Government to control private Telegraph Companies; the power is to require belligerent vessels not to use them.
purpose
The case of a Consul requires special Consideration. - Primâ furie he is entitled to the privilege of free communication with his Government, and this could be interfered with only if it were clear that he was abusing this privilege for the
of sending messages from a cruiser of his Government which had put into the neutral port. He could not properly be required to send his messages en clair, and if he abused the privilege of sending messages in cypher to send warlike messages from one of his Government's cruisers in the neutral port, the responsibility for this would rest with him and his Government.
3. The telegram from the United States' Consul at Barbados ought not to have been stopped: Mr. Chamberlain's telegram to Governor Sir. J. S. Hay of the 27th April was in answer to Sir J. S. Hay's telegram of the 25th April, and related only to the case put in Sir J. S. Hay's telegrain where the Consul was Consul of the Power whose cruiser had put in to the neutral port.
4. In the case put in Lord Tweeddale's letter of the 5th May, we think that the Eastern Company may transmit messages forwarded by the United States' forces from Manila subject to the risk of having their cable cut by the Spaniards, and to the question (which is one on which Her Majesty's Government cannot advise them), whether they are under any contractual obligation to the Spanish Government which forbids such transmission.
We think that if either belligerent sends a despatch-boat to Hong Kong with despatches for telegraphic transmission. Her Majesty's Government should not interfere with their transmission by the Telegraph Company, but, of course, cannot guarantee the Company against acts of the other belligerent in consequence of such transmission. We do not advise that, except under special circumstances, Her Majesty's Government should impose on a despatch-boat sent under such circumstances as are mentioned in Lord Tweeddale's letter the same conditions as to not using the cable which would be properly imposed on a cruiser putting into one of Her Majesty's ports.
5. The whole subject is novel, and cases of great difficulty may arise as to the No inflexible rule can be laid down, and a application of principles to particular cases. good deal of latitude must in practice be left to the Governor or other local authority in dealing with each particular case as it arises.
We have, &c.,
RICHARD E. WEBSTER. ROBERT B. FINLAY. C. T. SIMPSON.
No. 170.
(WESTERN PACIFIC.)
LAW OFFICERS TO COLONIAL OFFICE.
Royal Courts of Justice,
May 11, 1898.
SIR,
We were honoured with your commands signified in Mr. Bertram Cox's letter of the 26th ultimo, stating that he was directed by you to transmit for our consideration a despatch from the High Commissioner for the Western Pacific, respecting the case of certain natives of the New Hebrides Group who were accused of the murder of a naturalized British subject at Aoba, one of the islands of that group.
That the present political position of those islands was defined by the Convention between England and France of the 16th of November, 1887, and the Declaration (with Regulations appended thereto) of 26th January, 1888.
That the natives of those islands were savages of a low type, without chiefs or any recognized native authority capable of exercising jurisdiction, or from whom a concession of jurisdiction could be obtained.
That by Article II. of the Convention of 16th November, 1887, it would be seen that a Joint Naval Commission was agreed to be constituted, composed of British and French naval officers on the Pacific Station, charged with the duty of maintaining order, and of protecting the lives and property of British subjects and French citizens in the New Hebrides.
That the terms of that Article appeared to imply a claim on the part of Her Majesty and the Government of the French Republic to exercise criminal jurisdiction over the natives of the group, but that in the Regulations for the guidance of the Joint Naval Commission, appended to the Declaration of 26th January, 1888, it would be seen that the only action contemplated was repressive action in the nature of an act of war.
That it appeared, however, from paragraph 4 of Sir G. O'Brien's despatch that the Commission had been in the habit, apart from its exercise of acts of war, of inflicting punishments judicially by way of fines and imprisonment, and that the French authorities in the neighbouring French settlement of New Caledonia recognized and gave effect to such sentences of imprisonment, in cases where the outrages or offences perpetrated had been against French subjects.
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That it appeared to you that there could be no question that in such proceedings the Naval Commission was acting beyond its powers as defined in the Regulations appended to the Declaration of 1888.
That in those circumstances, as the French authorities were' apparently prepared to overlook any informality in the action of the Commission in assuming judicial powers, while the Government of Fiji rightly declined to do so, the protection of the lives and property of British subjects in the New Hebrides would be much less effective than that afforded to French citizens, and the extension of French influence in the group would be facilitated, a result which, from a political point of view, it was important to avoid.
That copies of previous opinions* of the Law Officers bearing upon this question were enclosed with Mr. Bertrain Cox's letter.
That in those circumstances Mr. Bertram Cox was to request us to be good enough to consider :-
1. Whether, in entering into the Convention of 1887, Her Majesty and the Govern ment of the French Republic have not asserted a claim to jurisdiction over the natives of the New Hebrides Group.
as
2. Whether, in the case of Her Majesty, it can be properly held that the jurisdiction so claimed is a jurisdiction held by usage, sufferance, and other lawful means,' specified in the Foreign Jurisdiction Act of 1890, and for the exercise of which Her Majesty may make provision under section of that Act.
3. If 80, whether it would he proper for Her Majesty by Order in Council, after an agreement, express or implied, with France, to empower the Joint Commission to exercise such jurisdiction in ordinary cases of offences against the lives or property of British subjects, and in more serious cases, such as murder, to remit them for trial by the High Commission Court in Fiji, and further to empower that Court to hear and decide such
cases.
No. 97.
Oct. 14.
167-00--23-3 Us
* Nos, 196 in Vol. 111., 183 in Vol. IV., and 23 in this Vol.
WO214IS DAS A
PUBLIC RECORD OFFICE
Reference :-
TTLELIC.O. 885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE COPYRIGHT PHOTOGRAPH-NOT TO BE REPRODUCED PHOTOGRAPHIC-