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PUBLIC RECORD OFFICE
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a despatch from the Governor of Hong Kong, and of an Ordinance for better * Vide Appendix securing the peace of the Colony," received by you therewith, and that the Ordinance having no suspending clause, is in force, unless the Governor has suspended its operation under the powers vested in him by section 1.
No. 1.
Ordinance for
better securing the peace of a Colony"
when it should not be confirmed by the Crown.
No. 18.
Ordinance" for
better securing the prace of a Colony," when it should not be confirmed by the Crown.
Mr. Ball also stated that he was directed to request that I would favour you with my opinion, whether this is an Ordinance which the Crown may properly be advised to confirm; or whether, if not confirmed, it may be, with propriety, left tacitly in operation.
the
In compliance with the request contained in Mr. Ball's letter, I have perused papers submitted to me, and have the honour to report :-
That I cannot advise that the Ordinance in question should be confirmed by Her Majesty.
Ordinances such as this, can be justified only by very peculiar state of local circumstances, rendering a suspension of law necessary for the safety of the colony. Of this necessity the local authorities are the best judges; but when such an Ordinance is required to be confirmed, the confirming power should have the same full information, and have arrived at the same conviction, as the local authorities.
No such state of things appears in the accompanying despatch of Sir John Bowring. The apprehension of incendiary fires is the chief, or rather only, danger spoken of, and Sir John Bowring expressly says that he does not antici- pate any rising of the Chinese.
There does not appear, therefore, to be any ground to justify Articles 7, 11, 14. 16, or the extraordinary and painful manner in which Sir John Bowring speaks of his intention to get rid of "the refuse Chinese population" by deporta- tion to (apparently) the worst parts of China.
I should recommend that instructions be sent to Sir Jolin Bowring, to the effect that having regard to the state of their existing information as to the colony, and to Articles 7, 11, 14, and 16, of the Ordinance in question, Her Majesty's Government are not prepared to advise Her Majesty to confirm it.
I do not think the Ordinance can, with propriety, be left tacitly in operation.
I have, &c.
The Right Hon. H. Labouchere,
Sir,
&c. &c. &c.
(Signed)
No. 18.
RICHARD BETHELL.
COPY of a LETTER from the ATtorney-General to Mr. Secretary
LABOUCHERE.
Lincoln's Inn, April 17, 1857.
I HAVE had the honour to receive the draft of your proposed despatch to Sir John Bowring, in answer to the despatch of Sir John Bowring, No. 9 of the 13th of January last.
I have read and considered the aforesaid draft of your proposed despatch. which appears to me to be in every respect right and proper, except that I would humbly submit to you that, under the circumstances, the last paragraph (No. 7) had better be omitted.
It appears to me, with submission, that this paragraph, No. 7, may be construed as expressing an opinion that, instead of the Ördinance, martial law ought to have been proclaimed; and also as containing something like a recom- mendation that, in any future emergency, resort had better be had to the pro- clamation of martial law.
I do not think it desirable to express any such opinion, or convey any such recommendation. Exception also may be taken to the accuracy of the language of part of the paragraph, in the parts underscored. If any recommendation be given to Sir John Bowring, I think it should be to augment the civil force by every means in his power (swearing in every resident, not being a Chinaman, as a special constable); during the day to have the military at hand to assist the
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pro-
civil power if necessary, and if these precautions be not sufficient for the tection of life and property, martial law, as a last resource, might be proclaimed from sunset to sunrise in Hong Kong.
¡
The Right Hon. H. Labouchere, M.P.
&c.
SIR,
&c.
&c.
I havo, &c.
(Signed)
RICHARD BETHELL.
Falkland Islands.
No. 19.
Copy of a LETTER from the QUEEN'S ADVOCATE to Sir G. GREY.
Doctors' Commons, August 7, 1854.
No 19.
Fisheries.
I AM honoured with his Grace the Duke of Newcastle's commands, signified in Mr. Merivale's letter of the 24th of June hast, stating that he was directed to transmit to me a copy of a despatch from the Governor of the prevented from
Foreigners may be Falkland Islands to his Grace, and to direct my attention to the subject on which fishing within a the Governor seeks for instructions in paragraph 19 of that despatch.
marine league from
Colony.
2. That the question on which my advice is requested is, within what the coast of a distance of the coasts of the several islands composing the Falkland group is Her Majesty's Government legally justified in preventing foreigners from whale and seal fishery?
3. That I am referred to the correspondence in the Foreign Office collection of "British and Foreign State Papers for 1832-33," pp. 311, 327, and 347, and for 1833-34, p. 1316, as containing the principal documentary evidence known to exist on the subject of national rights to the Falkland Islands: but that it is not conceived that they contain anything expressly bearing on this question.
4. A copy of Lieutenant-Governor Moody's Report on the Falkland Islands, with the map of them compiled from Captain Sulivan's Survey, is also annexed.
In obedience to his Grace's commands, I have taken the papers into consideration, and have the honour to report-
That in my opinion Her Majesty's Government will be legally justified in preventing foreigners from whale and seal fishing within three marine miles (or a marine league) from the coast, such being the distances to which, according to the modern interpretation and usage of nations, a cannon-shot is supposed to reach. From the peculiar configuration of the Falkland Islands, some difficulty may possibly arise in practice as to the bays and inlets which are to be consi- dered as entirely closed to foreigners, and as belonging exclusively to Her Majesty: as to these it would be premature at present for me to express any opinion. Those not more than six miles wide will not be open to question. I need scarcely add that the landing on any part of the shore to fish, or kill seals, should be absolutely interdicted.
I observe that in the despatch of the United States' Chargé d'Affaires to the Buenos Ayrean Minister of the 10th July, 1832 (at page 352 of Hertslet's "State Papers," 1832-33, vol. xx), it is asserted that the citizens of the United States have acquired a right of fishing by user, and constant and uninter- rupted enjoyment, with the full knowledge of Spain. With a view to this point, and to the probable course which the United States will take on this question, it will be desirable to obtain information of any cases in which, during either the Spanish, or more especially the British occupation, such asserted right of fishing at sea within three miles has been interrupted, and those attempting to exercise it punished. I would also suggest that the issuing of a properly drawn legal Ordinance on this subject, and the giving ample notice thereof to foreign Governments, would be desirable; and, having regard to all the circumstances of
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