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PUBLIC RECORD OFFICE
Reference
C.O. 885
their flag; and although the canon of international law upon the subject has not been definitely fixed, we think the balance of authority is in favour of the immunity of diplomatic despatches.
3. The difficulties in the way of answering either questions 1 or 2 in the affirmative are such that we do not suppose that question 3 will in practice arise; but we ought to point out that in the despatch already referred to it was asserted by Earl Russell, on behalf of Her Majesty's Government, that packets engaged in the Postal Service are entitled to peculiar favour and protection—” to detain, disturb, or interfere with them," it was there said, “ without the very gravest cause, would be an act of the most noxious and injurious character, not only to a vast number of individual and private interests, but to the public interests of neutral and friendly Governments."
·
4. The right of examining closed mails for the purpose of finding despatches herein relating to the war has never been excluded by international law, but we ought to point out that there has been a marked tendency of late years, as far as possible, to extend immunity to such mails. The examination by the French at Tamatave was apparently effectel in the territorial waters of land in the military occupation of the French, and even if it were on the high seas, we should not disagree with the opinion of the Law Officers that the act was not technically a violation of the
law of nations.
In the case of the “ Adela," however, Earl Russell, in his despatch of the 10th October, 1862, used the following expression :—
"Her Majesty's Government cannot doubt that, the Government of the United States are prepared to concede that all mail-bags clearly certified to be such shall be exempt from seizure and visitation."
. The "Adela
no doubt was bound for a neutral port, but the same observation would probably be made by the German Government with regard to the "Herzog." It would, we think, be a very strong measure, and one that should be adopted only in case of the most urgent necessity to open closed mail-lags in search of diplomatic correspondence, the immunity of which is, to say the least of it, very arguable,
5. The considerations arising upon the last question, 4, apply à fortiori to the case of private letters.
6. We have only to add that, according to present practice, it might be necessary to bring the "Herzog" into a British port along with the incriminated despatches. This, of course, would be a measure of very great gravity, and even if the Captain consented that the despatches should be seized while the vessel proceeded, his Government might contend that his consent was given under a species of duress, and that the whole action was illegal by reason of the procedure employed.
The case is one which presents many and great difficulties, and might lead to friction of a serious nature with a friendly Power. Whether the importance of the seizure of
the despatches in question is so great as to make it proper that the risks involved in that course should be run is a matter of policy.
The Marquess of Salisbury, K.G.
&c.. &c., &c.
We have, &c.,
RICHARD E. WEBSTER. ROBERT B. FINLAY.
36162.
SIR..
No. 244.
(STRAITS SETTLEMENTS.)
LAW OFFICERS TO COLONIAL OFFICE.
Royal Courts of Justice,
29th December, 1899.
We were honoured with your commands signified in Mr. C. P. Lucas's letter of the 4th instant stating that he was directed by you to transmit to us copy of the Letters Patent, dated 8th January, 1889, appointing the Governor of the Straits Settlements and their dependencies to be Governor of Christmas Island, and giving him the power to transfer that Island to the Straits Settlements with reference to a question which had arisen as to the appointment of a Magistrate for that "Island.
That, owing to the fact that a commercial company had taken a lease of Christmas Island, and bad imported a number of Chinese labourers to work the phosphate deposits there, it had become necessary to make some provision for its peace, order and good government; and that as there were at present pecuniary difficulties in the way of appointing a Magistrate with a small staff of police, for that purpose, you thought that it might be advisable to take advantage of Clause V. of the Letters Patent, and to annex the Island to the Straits Settlements.
with
That before taking that step, however, you were anxious to know what the precise legal effect of such annexation would be, and Mr. Lucas was to ask us to favour
you our opinion on the following points :-
(1.) Whether. after the Island had been annexed to the Straits Settlements under Clause V. of the Letters Patent, the Governor's power of making rules and regulations for its peace, order, and good government under Clause III. would continue to exist, or would be ipso facto determined by such annexation ?
(2.) Whether, upon such annexation, if the Governor's power was so determined,
the Island would come under the provisions of the law of the Straits Settlements for all purposes?
We were further honoured with Mr. Lucas's letter of the 14th instant, forwarding, 29-30 Vict.
c. 105. for our information, the additional documents enumerated in the margin.
Order in C., We have taken the matter into our consideration, and, in obedience to your commands, 28 Dec.,'66. have the honour to
Report-
O.'C., 19
May, '85. Instruc., 17 June, '85.
Patent.
(1.) That, after the Island has been annexed to the Straits Settlements,, the Letters Governor's power of making rules and regulations for its peace, order, and good Feb., '86. government will be ipso facto terminated by sitch annexation. He will then have Add inst.. the same powers in Christmas Island as in the rest of the Straits Settlements and 7 Dec., 87.
no more.
Letters
* Jan., '89,
30 Dec.,'91.
Ord. of S.S., 1867-1898.
(2.) We do not think that Her Majesty has by the Letters Patent of the Patent, 8th January, 1889, sufficiently indicated an intention that on the annexation the law L. Patent, of the Straits Settlements should apply in Christmas Island for all purposes.
We are of opinion that the Legislative Council will, upon such annexation, have Ind. Acts, full power to make laws for Christmas Island, and may pass an Ordinance providing 1834-1867. that such portions of the laws of the Straits Settlements as it is thought desirable shall there apply with such other laws as seem suitable to the circumstances of Christmas Island. A good deal of the law of the Straits Settlements does not seem very applicable to Christmas Island, and this affords another reason for the conclusion that the law of the Straits Settlements is not ipso facto in its entirety applied to Christinas Island on its
We have, &c.,,
annexation.
The Right Honourable Joseph Chamberlain, M.P.,
RICHARD E. WEBSTER. ROBERT B. FINLAY.
&..
&c.,
4197-25 11:00 Wx 439 D&S 5
&c.
14 PUBLIC RECORD OFFICE, LONDON
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