(7)..
From Hon. ATTORNEY-GENERAL to Hon. COLONIAL SECRETARY.
(Urgent.)
It is a principle of our law, as I conceive, that a witness cannot be compelled to attend the hearing of legal proceedings except under a certain legal process which is known as a subpoena.
It appears to me that no subpoena could validly be issued by any magisterial or judicial authority here in such a way as to take effect in those territories which are now in military occupation.
So far as compelling the attendance of a witness before them is concerned, it seems to me that our Courts are just as powerless as regards the territories in military occupation as they would be as regards any territories belonging to the Emperor of
China.
It seems to me that there would be a violation of legal principles if the head of the Executive in this Colony were to order the military authorities to arrest this man in the territory now in military occupation and to bring him into our new territories against his will to be a witness.
H. E. POLLOCK,
August 12, 1899.
Acting Attorney-General.
353
I am aware that the questions put now for the consideration of the Attorney- General are rather diffuse, but the position is so interesting that I should be glad if he can throw some further light on the subject.
August 12, 1899.
(10).
From Hon. COLONIAL SECRETARY to Hon. ATTORNEY-GENERAL. (Immediate.)
Please advise.
August 14, 1899.
(11).
H. A. B.
J. H. S. LOCKHART.
From Hon. ATTORNEY-GENERAL to Hon. COLONIAL SECRETARY.
If you will kindly let me know what instructions this Government has received from the Secretary of State for the Colonies in connection with the occupation of the Sham Chun territory, I will do my best to answer the questions put by His Excellency, which are of a rather comprehensive character and not easy of solution.
(8).
From Hon. COLONIAL SECRETARY to His Excellency the GOVERNOR.
(Early.)
YOUR EXCELLENCY,
August 12, 1899.
SUBMITTED.
J. H. S. LOCKHART.
August 15, 1899.
(12).
H. E. POLLOCK,
Acting Attorney-General.
From Hon. COLONIAL SECRETARY to His Excellency the GOVERNOR. (Early.) YOUR EXCELLENCY,
August 15, 1899. SUBMITTED. I have not seen the instructions to which the Attorney-General refers, and which he desires to know.
J. H. S. L.
(9).
From His Excellency the GoVERNOR to Hon. COLONIAL SECRETARY, Would it be in accordance with legal principles to compel the man to give evidence in the case before the Officer Commanding Troops in the occupied territory and to have such evidence transmitted to the Court here?
It is a very interesting point, as if there be no means of compelling a witness to give evidence, there is no means of legally arresting persons who might be guilty of crime in the Colony. For instance, an armed gang might cross the river into our terri- tory from the valley now occupied by the military and commit a robbery or a murder. Assuming that they or someone of the gang can be identified, does the Acting Attorney- General hold that there would be no constitutional method of dealing with them or effecting their arrest. The place is at present under martial law, which, I take it, means that its internal regulations are dependent upon the orders of the Officer Com- manding Troops, who will cause those orders to be obeyed as he thinks proper, and in- dependently of proceedings usually adopted in civil procedure. If this be so, where would be the violation of constitutional principles if the Officer Commanding Troops ordered that persons who committed crime should be punished as he decided, if the crime were committed within the area of military occupation, or should be arrested and handed over to the civil power of the Colony to be dealt with by the Courts of the Colony. And, going a stop farther, where would be the breach of constitutional prin- ciples if a witness, who is in possession of the proceeds of a robbery in the course of his business, as in this case, were ordered by the Officer Commanding Troops to proceed to the Colony and give evidence as to the possession?
In other words it appears to me that in the territory in military occupation the orders of the Officer Commanding Troops must be law, and if so the ordering or not of a person to come forward would be a matter of discretion in which legal principles would not be involved.
T
(13).
From His Excellency the GOVERNOR to Hon. COLONIAL SECRETARY, Absolutely none. Except to occupy Sham Chun for the present.
August 16, 1899.
(14.)
From Hon. COLONIAL, SECRETARY to Hon. ATTORNEY-GENERAL. Passed to you.
August 16, 1899.
(15.)
H. A. B.
J. H. S. L.
From Hon. Attorney-General to Hon. COLONIAL SECRETARY.
I think it is obvious that the General Officer Commanding cannot claim to stand in a stronger position as regards the occupied territory than if he were occupying it as part of a warlike operation during actual hostilities between Great Britain and China. Indeed I very much doubt whether the Secretary of State ever intended that the General Officer Commanding should exercise such extensive powers as those which would be vested in him as a military occupant during actual warfare.
Now, according to the rules of International Law, the results of a military occu- pation during war are as follows (see Hallech, Bk. II., c. 33, 1878 Ed., p. 450):-
"The municipal laws of a conquered territory, or the laws which regulate private rights, continue in force during military occupation, except so far as they are sub- pended or changed by the acts of the conqueror. Important changes of this kind are
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