proper office a document expressly agreeing to submit to the jurisdiction of Natal Courts, would tend to operate in restraint of trade, and would not be desirable. It will always be open to persons resident in Natal, when entering into a contract with foreign persons or corporations, to make it a term of the Contract that the Natal Courts shall have jurisdiction.
4. We think the draft rules prepared by Mr. Muir MacKenzie should be submitted to the local authorities for their observations thereon.
35531.
The Right Hon. J. Chamberlain, M.P., of ::
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R. B. FINLAY. EDWARD CARSON,
No. 107.
(VICTORIA.)
SIR,
LAW OFFICERS TO COLONIAL OFFICE.
Royal Courts of Justice,
October 9, 1901.
We were honoured with your commands signified in Mr. C. P. Lucas's letter of the 14th ultimo, stating that he was directed by you to lay before us a confidential despatch dated 26th June last, from the Officer Administering the Government of the State of Victoria, and to request the favour of our report upon the question raised therein, as to the law relating to "Acts of State."
That on the 21st June, a telegram was received at the Colonial Office from the Officer Administering the Government of the State of Victoria, stating that an Irish newspaper libel on His Majesty the King had been re-published by a Melbourne newspaper, and suggesting that the State Government should seize and suppress the said newspaper article as an Act of State, if the Imperial Government would adopt the seizure as such Act.
That the following answer was returned by telegraph-" Adoption of seizure by Imperial Government as Act of State would not help, if no local authority to seize. Defence of Act of State not available against British subject. For this and other reasons, His Majesty's Government do not advise any action of the nature proposed."
That in his confidential despatch of the 26th June, the Officer Administering the Government supported the view of himself and his Ministers, that the newspaper article might have been seized by him, and the seizure adopted by the Secretary of State, as an Act of State, by reference to the cases of Napper Tandy . The Earl of Westmoreland (27 State Trials, 1246), Luby v. Lord Wodehouse (17 Irish C.L.R. 618) and Buron v. Denman (2 Ex.: R. 167).
That it would, however, appear that in the two former of those cases, as explained by the more recent case of Musgrave v. Pulido, (L.R. 5, A.C. 102), it was sought, un- successfully, to make the Lord Lieutenant of Ireland liable for political acts done in his official capacity, which acts the Court assumed to be within the limits of his authority as a Viceroy, and that in those cases, consequently, the question of the adoption of a prima facie illegal act as an Act of State did not arise.
That it, therefore, seemed arguable that the decision that a Viceroy should be entitled lawfully to seize a seditious publication as an ordinary Act of Government was no authority for the proposition that a Governor who was not a Viceroy, (see Musgrave r. Pulido at page 111), but whose powers were limited by his Commission, should be entitled to commit what would be prima facie an act of oppression against a British subject, and to have it adopted as an Act of State by the Imperial Government.
That it would also appear that, the case of Buron v. Denman, was no authority for the adoption as an Act of State of high-handed illegal action taken against a British subject, against whom the ordinary process of law was available.
That Mr. Lucas was, therefore, to request us to consider the authorities bearing upon the question, and to report :-
(1.) Whether the proposed seizure of the newspaper article referred to, might legally have been adopted by his Majesty's Government as an Act of State ?
(2.) Whether under any circumstances, and, if so, under what circumstances, the Crown could adopt, as an Act of State a prima facie illegal act by the Governor of a Colony against a British subject ?
We have taken the matter into our consideration, and, in obedience to your commands, have the honour to
Report-
1. That the proposed seizure of the newspaper article referred to could not legally have been adopted by His Majesty's Government as an Act of State. The cases referred to in the despatch of the 26th June, have no application.
Cases such as Buron v. Denman where the aggrieved party was a foreigner, have no application as against British subjects, and the Irish cases turn on the immunity of
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PUBLIC RECORD OFFICE
Reference :-
C.O. 885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
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the Viceroy from legal proceedings, and do not cover the case of the Governor of a Colony, or of surbordinates acting by the orders of a Viceroy or Governor.
2. We do not know of any case where the defence of "an Act of State" could be set up against an action by a British subject for an illegal act by the Governor of a Colony,
The Right Honourable Joseph Chamberlain, M.P.,
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