PUBLIC RECORD OFFICE
Reference :-
mimic.O. 885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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2. If the answer to the last question was in the affirmative whether, by the combined action of 63 and 64 Vic. c. 44 the said Proclamation, and section 8 of the Customs Act, 1879 (42 and 43 Vic. c. 21), the revolvers and ammunition were forfeited to His Majesty, and, being forfeited, were liable to be seized in any part of His Majesty's dominions?
3. Whether they were liable to seizure under the law of Hong Kong or otherwise? 4. What course should be taken with reference to the arms?
5. Generally.
We have taken the papers into our consideration, and, in obedience to have the honour to
Report
your commands,
1. That Wei Hai Wei is, in our opinion, to be regarded as being in "China" within the meaning of the Proclamation of 7th August, 1900. We understand that His Majesty's Government have not exercised their right of treating Wei Hai Wei as part of His Majesty's dominions, but even if this were so we do not think it would occasion any difficulty as "China" appears to us to be used in the Proclamation in its geographical and not in its political sense.
2. We think the revolvers and ammunition could be forfeited in any part of His Majesty's dominions, under the Acts and Proclamation mentioned, if it could be shown as a fact that they were exported to Wei Hai Wei without licence; but we would point out that, although there was undoubtedly an intention to re-transport from Hong Kong, the exporters-before proceeding to carry this out-referred the matter to His Majesty's Government, and were apparently willing to abide by their directions.
We think, under the circumstances, that a question would arise as to whether the exporters intended to act in defiance of the Proclamation, and it does not very satis- factorily appear that the arms and ammunition were not in fact intended for the First Chinese Regiment; it is, indeed, stated that there is "no record" of this at Wei Hai Wei, but it is possible that Messrs. Webley and Company may have some explanation to offer.
3. There does not appear to have been any breach of the Ordinance of Hong Kong which would render the goods liable to seizure under the law of Hong Kong.
The exporters seem to have applied for a licence under section 6 of the Ordinance
No. 9, of 1900, which appears to have been the proper course.
4. We think the arms might be delivered up to the exporters on the understanding that they should be re-shipped to England, or to some other place to which the Proclamation does not apply.
5. Nothing further occurs to us.
We have, &c.,
R. B. FINLAY. EDWARD CARSON.
The Right Hon. J. Chamberlain, M.P.,
&c.,
&C.,
&c.
26499
S.
SIR,
No. 93 A.
(SOUTH AFRICA.)
LAW OFFICERS TO COLONIAL OFFICE.
Law Officers' Department, Royal Courts of Justice, July 31, 1901.
WE were honoured with your commands signified in Mr. Bertram Cox's letter High Commis. of the 26th ultimo, stating that he was directed to transmit for our consideration a sioner Sir A.
Milner, May 8. copy of telegraphic correspondence which had passed between His Majesty's Govern- Secretary of State ment and the High Commissioner for South Africa with reference to a proposal as to June 18, No. 2. the adoption of more severe measures for the termination of the present hostilities in South Africa.
That before proceeding to the consideration of any such measures you would be glad to be favoured with our Report upon the following points:-
1. Whether it would be in accordance with international law to confiscate the property of leaders of the enemy's forces who did not surrender within a specified time, so long as the enemy's forces were recognized as belligerents?
2. Under what circumstances would it be permissible by international law to decline any longer to recognize the enemy's forces as belligerents and to treat them as rebels or as hundits ?
3. In the event of His Majesty's Government deciding no longer to treat the enemy's forces as belligerents would such a decision be equivalent to a declaration that the war was at an end?
4. Assuming that in consequence of such decision, or in any other way, the war was considered to have been brought to a legal conclusion:
(a.) Would His Majesty's Government be bound to restore all prisoners of war to their own countries, or would His Majesty's Government be entitled to further detain any prisoners or classes of prisoners, and if so, on what grounds?
5. What change would such legal termination of a state of war make in the obligations of His Majesty's Government :
J
(a) To persons still in arms in either of the two new Colonies as regards both their persons and property ?
(b) To persons who have surrendered voluntarily ?
(c.) To foreign countries and their subjects?
6. Generally.
We have taken the matter into our consideration, and in obedience to your commands have the honour to
REPORT-
1. That the right to seize and confiscate private property of enemies has never heen abolished by international law but its exercise on land is contrary to the usages of modern warfare. We cannot advise that the property of leaders of the enemy's forces who do not surrender within a specified time should be confiscated.
2. It would be permissible by inferuational law to decline to recognize any persons in arms as belligerents, and to treat them as rebels or as bandits, only, if war had come to an end.. This is of course a question of fact depending on the circum- stances of each ease, and not admitting of any general definition. As far as we are in a position to judge of the present state of affairs we do not think that His Majesty's Government can properly proceed in this respect on the footing that the war is at an end.
3. A decision no longer to treat the enemy's forces as belligerents would be equivalent to a declaration that the war was at an end, as it could be justified only on that assumption.
. On the cessation of the war Ilis Majesty's Government would be bound to allow to return to their own countries all prisoners of war who are subjects of neutral States, with reasonable dispatch.
As regards prisoners of war who were subjects of the Transvaal or Orange Free State Republies we think that His Majesty's Government would be acting in accordance with practice if they gave them the option of electing not to return to
307 (16)
High Commis-
sioner Lord Kitchener, June 13
No. 438.
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