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PUBLIC RECORD OFFICE

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5 PUBLIC RECORD OFFICE, LONDON

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seldom made, as the conqueror has no interest in interfering with the municipal laws of the country which he holds by the temporary rights of military occupation. He nevertheless has all the powers of a de facto Government, and can at his pleasure, either change the existing laws or make new ones."

See, too, Hall on International Law, 2nd edition, 1884, at pages 430, 431, and es- pecially at page 436, where Hall says as follows:-

It has been seen that the authority of the local civil and judicial administration is suspended, as, of course, so soon as an occupation takes place. It is not usual, how- ever, for an invader to take the whole administration into his own hands; partly because it is more easy to preserve order through the agency of the native functionaries, partly because they are more competent to deal with the laws which remain in force, he generally keeps in their posts such of the judicial and of the inferior administrative officers as are willing to serve under him, subjecting them only to supervision on the part of the military authorities, or of superior civil authorities appointed by him."

The above quotations from well-recognised authorities will serve to show that even in military occupation during a war it is quite usual to have the judicial officers of the courts at their posts and to have the laws unchanged, the occupying Power exercising supervision, and, of course, preserving order.

Moreover, I cannot help feeling strongly that the Secretary of State must have intended, under the particular circumstances of this case that the laws and customs of the inhabitants of the occupied territory should be interfered with as little as possible.

I will now,

having attempted to explain the general legal aspect of affairs, answer to the best of my ability the questions put by His Excellency.

(1). I do not think that it would be in accordance with legal principles for the General Officer Commanding to compel the man to give evidence before him with regard to a case which is pending in our Courts, and I do not see how, even if the General Officer Commanding were to take such evidence, our Courts could possibly pay any regard to any evidence taken under such circumstances.

His Excellency states in his minute of the 12th instant that:

'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."

With this latter chain of reasoning, I beg leave respectfully to state that I find myself unable to agree, for it appears to me that the position of a criminal who has committed a crime within this Colony and absconded from this Colony, differs alto- gether from the position of a man within the occupied territory who is required merely for the purpose of giving evidence as to a crime committed within this Colony.

In the case of a criminal escaping from this Colony into the occupied territory, I think that the General Officer Commanding would clearly be justified, in pursuance of his general duty of preserving public order, in arresting the criminal and handing him over to the police authorities of this Colony, and that it would not be necessary for us to apply to the Chinese authorities for the man's extradition.

In the case of crimes committed within the area of the military occupation, I am of opinion that, as a general rule, the proper course to adopt would be to leave the elders to adjudicate, subject, in cases where it appears advisable, to the supervision of a military officer appointed by the General Officer Commanding, and I rather gather from the General Officer Commanding's minute of the 10th instant that that is the course which is being pursued.

August 19, 1899.

(16.)

H. E. POLLOCK.

From Hon. COLONIAL Secretary to His Excellency the GOVERNOR. YOUR EXCELLENCY,

SUBMITTED.

(17.)

26815

(Confidential.)

SIR,

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No. 254.

FOREIGN OFFICE to COLONIAL OFFICE. (Received October 4, 1899.) [Copy to War Office, October 9, 1899. L.F.] [Answered by No. 255.]

Foreign Office, October 4, 1899. WITH reference to my letter of the 27th ultimo,* I am directed by the Marquess of Salisbury to transmit to you, for the information of Mr. Secretary Chamberlain, a copy of a telegram from Her Majesty's Chargé d'Affaires reporting a communication made to him by the Tsungli-Yamen with regard to the British occupation of Sham Chun and the question of the exercise of jurisdiction by Chinese officials within the City of Kowloon.

I am to state that His Lordship sees no objection to the Governor of Hong Kong being now instructed to arrange for the retrocession of Sham Chun to China.

No pledge has been given to the Chinese Government as regards allowing the re sumption by Chinese officials of jurisdiction within Kowloon City, and in a note to the Chinese Minister dated May 30th, of which a copy was enclosed in my letter of June 1st, Lord Salisbury stated that it was impossible for Her Majesty's Government to allow the resumption of Chinese authority within the walls of that city.

(Paraphrase.)

From

Enclosure in No. 254.

I am, &c.,

Mr. BAX-IRONSIDE, Peking.

FRANCIS BERTIE.

(Sent 1.35 p.m. Received 12 p.m. October 2, 1899.)

TELEGRAM.

No. 252. I am informed by the Yamen that the headman in the Fleming murder case has been captured,

The Yamen allude to intimations contained in your telegrams, Nos. 122 and 128, and maintain that the affairs of the Fleming murder and the Northern Railway have now been dealt with satisfactorily. They now ask that I should telegraph to you their request that Chinese officials should be allowed to exercise jurisdiction within Kowloon City, and that Sham Chun should be restored to China.

26815

(Confidential.)

SIR,

August 21, 1899.

J. H. S. L.

From His Excellency the GOVERNOR to GENERAL OFFICER COMMANDING.

His Excellency Major-General Gascoigne, ('MG.,

I SEND this on as it will be interesting to you.

August 22, 1899.

H. A. B.

No. 255.

COLONIAL OFFICE to FOREIGN OFFICE. [Copy to War Office, October 9, 1899. L.F.] [Answered by No. 259.]

Downing Street, October 9, 1899. I AM directed by Mr. Secretary Chamberlain to acknowledge the receipt of your letter of the 4th instant, intimating that Lord Salisbury now sees no objection to instructions being sent to the Governor of Hong Kong to arrange for the retrocession to China of Sham Chun.

!

I

2. Mr. Chamberlain would be glad at once to telegraph to the Governor to that effect, as the continuance of the existing uncertainty is extremely undesirable, and the prolonged occupation is causing daily expense, but before a telegram is sent he would ask that Lord Salisbury may be good enough to consider, at his earliest convenience,

• No. 251.

498

↑ No. 177.

‡ No. 254.

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