32
I believe that the passage in my previous Minute on the subject of naval law gives accurately enough the limits within which that law is applicable.
With the aid of full information from the Adiniralty, I have gone into the position of Ascension, and there appears to me to be nothing in the jurisdictional status of that island which can be quoted as a precedent for imposing naval law beyond the limits I originally mentioned,
As soon as I can find time I will endeavour to write a short Memorandum on the casc of Ascension, which is a very peculiar one. The naval law, however, which is there enforced is not enforced, as is sometimes supposed, on the theory that the island itself is a Queen's ship (which may be shortly called the H.M.S." Ascension" theory), but is enforced on the population of Ascension because the whole of them, except a few women and children, are actually borne on the books of the navy. The position, in fact, is very To the whole of the similar to that, for instance, of Whale Island at Portsmouth. inhabitants of the barracks and other buildings on Whale Island, with the exception of a few women and children, the Naval Discipline Act applies, not, however, because Whale Island is theoretically a Queen's ship, but because its inhabitants are, with the exceptions mentioned, all borne on the books of the navy. A woman, or child, or casual stranger committing an offence on Whale Island is not obnoxious to the provisions of naval law, and cannot be punished thereunder.
So, on Ascension Island, a woman, or child, or passing visitor committing an offence would not be punishable by naval law-or, indeed, by any law-unless the offence were murder or manslaughter, in which event he or she could be tried at the Central Criminal Court, The only difference in this respect between Ascension and Whale Island is that on Whale Island persons on the books of the navy are punishable under naval law, and civilians, if they commit offences, are punishable by the ordinary law applicable in the County of Hants; while on Ascension Island a civilian who committed any offence would not be punishable at all in any British Court unless he were a British subject and the offence happened to be murder or manslaughter. There is no local law applicable to anybody on Ascension.
Fortunately in these circumstances there are no civilians living on the island, and, no doubt, if they attempted to establish themselves there the Admiralty, which owns the entire place, would find means to prevent them from so doing.
The conditions at Wei-hai Wei will be very dissimilar. Besides these who are borne on the books of the navy, and who will be justiciable under the Naval Discipline Act, there will be at least two battalions of the line, who are subject to the Army Act. There will also be, as I understand, a civilian population, which will probably increase in numbers as time goes on, and which will be likely to find occupation in keeping stores und shops or in working at various kinds of skilled and unskilled labour.
Theoretically, the incorporation of the leased territory of Kowloon in the British Colony of Hong Kong affords a precedent for the temporary incorporation of the leased territory of Wei-hai Wei in the British Colony of Hong Kong or in some other British Colony.
But practically what works easily in the Kowloon case-by reason of the territory of Kowloon marching" with the boundary of the previous territory of Hong Kong-will not at all suit the different conditions of Wei-hai Wei. The latter place is more than 1,000 miles from the nearest British Colony, and it is impossible, therefore, to govern it without a separate system of administration, both civil and judicial,
It seems to me, on the whole, that the system adopted in Cyprus, though not ideal, is the least open to objection, and that it would be well to get Mr. Gray (who is now back in town) to frame tentatively an Order in Council on the general lines of the Cyprus Order in Council. This will not, of course, exclude the application of the Navy and Army Acts to persons serving in those respective services, and it will provide for cases in which naval or military law cannot, as I venture to think, be applied.
I imagine that only one or two Judges and Magistrates-perhaps one Judge and a Registrar capable and authorized to perform magisterial duties-would be found sufficient to start with ; but the details can readily be settled if the principle is approved.
W. E. D.
Foreign Office, April 25, 1899.
33
Enclosure 4 in No. 28.
FOREIGN OFFICE to MR. A. Gray.
Foreign Office, SIR,
May 19, 1899. I AM directed by the Marquess of Salisbury to inform you that, by a Convention signed at Peking between this country and China on the 1st July, 1898, of which a copy is annexed, it is provided that territory comprising the Island of Liu Kung, and all the islands in the Bay of Wei-hai-Wei, and a belt of land 10 English miles wide along the entire coast-line of the Bay of Wei-hai-Wei, shall be leased to Great Britain for so long a period as Port Arthur shall remain in the occupation of Russia.
Owing to the conclusion of this Convention, it has become necessary to provide for the administration of justice in the leased territory, and Her Majesty's Government consider that jurisdiction must be claimed within its limits over all persons, British, Chinese, and foreigners alike.
The question was referred in February last to the Law Officers of the Crown, and a copy of their Report on the subject is annexed.†
For reasons of policy, into which it is unnecessary to enter for the purposes of this reference, Her Majesty's Government have decided that it would be inexpedient to treat the territory in question as forming part of Her Majesty's dominions in the manner suggested by the Law Officers ; and it became necessary, therefore, to consider by what other means, which would not be open to the same objections, the desired result could be attained.
The position of the Island of Cyprus, which is not British territory, but which is now under the administration of this country, appears to afford the nearest precedent for that of Wei-bai-Wei, and, having regard to the analogy between the two cases, Lord Salisbury is of opinion that all the powers which Great Britain at present possesses in Cyprus may safely be assumed by Her Majesty's Government in Wei-hai-Wei.
As regards natives of China resident in the leased territory, no jurisdictional difficulty appears likely to arise as between Her Majesty's Government and that of China, as China has, in the Convention, given to Great Britain sole jurisdiction in that territory. It will, however, probably be expedient that some formal declaration should be made on the subject.
As regards natives of countries other than Great Britain and China, you are aware that, as was the case in Cyprus at the time of the occupation of the island by Great Britain, the European Powers possessed in Wei-hai-Wei, as in other parts of China, extra-territorial jurisdiction.
I am to transmit to you, for convenience of reference, a copy of the Convention entered into by Great Britain and Turkey on the 4th June, 1878, for the occupation of Cyprus by the former, together with a copy of a Supplementary Convention vesting in Her Majesty the Queen the power to make Laws and Conventions for the government of the island, and I am to request that you will draft an Order in Council, providing for the administration of justice in the territory leased to this country under the Convention of the 1st July above referred to, on the lines of the Order in Council which was approved by Her Majesty on the 14th September, 1878, constituting a High Commissioner and a Legislative Council in Cyprus.
Copies of that Order in Council, and of the Ordinance subsequently passed there- under on the 17th January, 1879, for the establishment of a High Court of Justice in the island, are also inclosed herewith, together with a printed copy of the Departmental Minutes on the question dealt with in this reference.T
S.
5856
•
I have, &c.,
FRANCI BERTIE.
Treaty Series, No. 14, 1898.
"Turkey, No. 36 (1878)," pp. 3 and 4. Admiralty, February 3, 1899.
† Law Officers, February 22, 1899.
“Cyprus, No. 1 (1879),” pr. 1, 2, and 7 Minutes.
F
PUBLIC RECORD OFFICE
Reference :-
TLC.O. 882
سائلنسا
6
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
PUBLIC RECORD OFFICE, LONDON