*
PUBLIC RECORD OFFICE
Reference :-
C.O. 885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
We have taken the subject into our consideration, and in obedience to your commands have the honour to
Report-
The
(1) That we think the Treaty of 16th July, 1891, was not affected as regards Queensland by the entry of Queensland into the Commonwealth of Australia: treaty was not between Queensland and Japan but between His [Her late] Majesty and Japan. The case is not one in which an independent Power has become merged by conquest or cession in the territories of another Power. The portion of His Majesty's dontinions known as Queensland has combined with other portions of His Majesty's dominions to form the Commonwealth of Australia which is itself a part of His Majesty's dominions. The Treaty seems to us to affect Queensland as a State of the Commonwealth just as much as it affected Queensland as a Colony.
(2) (a) We think that the notice should be given by His Majesty's Government on behalf of the Government of the Commonwealth, and of the Government of Queensland.
(b) We think that the Immigration Restriction Act does to some extent conflict with the provisions of the Treaty. Articles I. and III. of the Treaty_provide for unrestricted entry, residence, and travel and trade. Section 4 (a) of the Immigration Restriction Act prohibits the immigration into the Commonwealth of any person who cannot write out to dictation a passage of fifty words in length in a European language. It cannot, we think, be successfully urged that this is a test which can be impartially applied to immigrants from whatever part of the world they may come. It is obviously selected because it will have the effect of excluding Asiatic immigrants, and the selection of a test which is calculated to exclude Japanese seems to us to be in conflict with the Treaty.
The importance of this conflict is, however, very much minimised by the terms of the Protocol of 16th March, 1897, by which the adhesion is signified. By Article I. of that Protocol any laws with regard to the immigration of labourers and artizans were not to be affected by Articles I. and III. of the Treaty. We presume that most of the immigrants from Japan who would be affected by Section 4 (a) of the Act would be labourers or artizans. The other exception in the Protocol, as to laws with regard to trade, does not appear to be for the present purpose material as the Immigration Act hardly falls under this description, but the effect of the Act with regard to traders proposing to settle in Queensland, and any other Japanese immigrants not being labourers or artizans, may be very much mitigated by the exercise of the power of exception conferred in Section 4 (h).
It therefore appears that upon the whole the Immigration Act may be so administered as not to cause any sensible conflict with the Treaty.
The Right Honourable Joseph Chamberlain, M.P., &c.,
&c.,
&c.
We have, &c.,
R. B. FINLAY. EDWARD CARSON.
10607.
No. 134.
(GOLD COAST.)
LAW OFFICERS to COLONIAL OFFICE,
RAINSFORD v. BROWNE.
[Question as to producing in a Court of Law in Ireland documents which the Secretary of State considers, in the interests of the Iublic Service, should not be produced. As to further proceedings.]
SIB,
Royal Courts of Justice,
March 12, 1902.
We were honoured with your commands signified to us by Mr. Bertram Cox in his letter of the 7th instant, stating that, with reference to our Report of the 15th November last, he was directed by you to inform us that Mr. Read, of the Colonial Office, attended at the trial which recently took place in Dublin, and, acting on your instructions, declined to produce the documents referred to in that Report, and that this claim of privilege was admitted by the Court, and the documents were accordingly not produced.
That Mr. Bertram Cox was now to transmit to us two letters from Major Browne (with their enclosures), the defendant in that action, from which it appeared that the jury gave a verdict against him for £500 damages, and that execution had been stayed for fourteen days by the Lord Chief Baron to enable the defendant to move for a new trial, or to have the judgment entered in his favour, and the question accordingly arose whether the defendant should be encouraged to take further proceedings.
That, subject to the view which we might take of the case, you were of opinion that this was an action in which the defendant's damages and costs should be paid by the Government of the Gold Coast, as it appeared to you that Major Browne was acting under the orders of his superior officer, and the Lord Chief Baron at the trial in Ireland appeared, to have directed the jury that Major Browne was justified in his belief, when he ordered the arrest of Mr. Rainsford, that Mr. Rainsford was subject to military law, and was, therefore, morally free from blume in acting as he did.
That, in a letter from the Colonial Office to Major Browne of the 12th September last, he was informed that, if satisfied that he had not acted improperly in the proceedings in respect of which the action was brought, you would take into consideration the question whether the Gold Coast Government should be asked to make good to him the actual expenses resulting from the action, and, as at present advised, you saw no reason why the damages and expenses which Major Browne was now called upon to meet should not be 20 paid. That you had, however, asked Major Browne to furnish as soon as either the shorthand notes of the action, or as full a report as he was able to obtain, and, possible when received, that this would at once be forwarded to us for our information. That in the meantime Mr. Bertram Cox was to enclose a copy of a report of the trial which appeared in the "Times."
That the question, however, arose whether Major Browne should be encouraged to take the further proceedings which he indicated, or whether he should be told that, while you were prepared to ask the Gold Coast Government to pay his damages and costa already incurred, you were not prepared to ask that Government to pay the costs of any further proceedings.
That Mr. Bertram Cox was accordingly to request us to take these matters into our consideration and to advise :-
(1.) Whether, having regard to the conduct of Major Browne and the charge of the Lord Chief Baron, you would be justified in requesting the Government of the Gold Coast to pay the damages and costs already incurred by Major Browne?
(2.) Whether there was reasonable ground for supposing, if the further proceedings indicated were taken on the part of Major Browne, the Court of Appeal in Ireland or the House of Lords would decide in favour of Major Browne?
• No. 114.
11356-25-3/1902 Wt 362 D & 8 6