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PUBLIC RECORD OFFICE

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TTC.O. 882

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8 PUBLIC RECORD OFFICE, LONDON

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APPENDIX B.

THE LAW OFFICERS AND MB. ROWLATT TO THE BOARD OF TRADE.

[Conveyanos of indentured coolies in British ships to places outside His Majesty's dominions.]

The Chinese Passenger Act, 1855.

Hong Kong Ordinance, 1889.

(a.) We are of opinion that the Ordinance as it stands does not prohibit the Governor of Hong Kong from granting a licence for a single voyages for carrying indentured coolies to a place outside His Majesty's dominions. There is nothing in either Act to prohibit it, and Schedule B. of the Act of 1855 and Schedule F. to the Ordinance of 1889 clearly show that the possibility of such trade was contemplated.

(6.) Whether the instructions referred to are, or are not, ultra vires depends, in our opinion, upon the position which the Legislature of Hong Kong occupied in making regulations under Bestion 2 of the Act of 1855. If it was soting merely as the depository of a special power to make regulations it could not validly confer either upon the Governor or upon the Secretary of State the discretionary power given by Section 11 of the Ordinanse. We are, however, upon the whole, of opinion that the functions of the Legislature of Hong Kong under the Act of 1855 were not so limited. The Legislature had enjoyed since 1843 power to make laws for the pesce, order, and good government of British subjects in Hong Kong, and by virtue of 6 and 7 Vict. cap. 80, the Governor, with the advice of the Legislative Council, also had authority to make laws and ordinances for the peace, order, and good government of Her Majesty's subjects in China, or on any vamel not more than 100 miles from the coast. There are no words in the Chinese Passenger Act, 1855, to take away this power.

That Act, it is true, makes certain regulations, and as those regulations apparently contemplate the carrying of indentured coolies, it might have been mid, had the regulations been enacted as permanent regulations, that the Colonial Legislature could not, under their existing powers make others directly or indirectly repugnant to them. The regulations provided by the Chinese Passenger Act are, however, only to be in force until the enactment of regulations by the Legislature in Hong Kong, and the proclamation in Hong Kong of Her Majesty's confirmation of such ensolment. We think, under these circumstances that the Hong Kong Legislature retained, subject to the jlevision' delaying the Ordinance taking effect till Her Majesty's confirmation had been proclaimed full power to legislate upon the question. By Section 2 the jurisdiction of the Legislature in Hong Kong is expressly extonded to British ahips at sen.

▲ question has been raised as to whether power to make regulations or conditions with respect to a trade could in any case extend to prohibition. No such difficulty arises here because the trade in question is not the carrying of indentured coolies, but the carrying of Chinese passengers, and to require that they should not be indentured is not a prohibition of that trade.

(g) Having regard to the position of Hong Kong as a Crown Colony, and to the fact that the discretion of the Governor under Section 11 is under the control of the Secretary of State, the power, in substance, of the Secretary of State to control the traffic in question is, in any case, quite free from doubt.

Law Officers' Department,

November 30, 1906.

JOHN L. WALTON.

W. 8. ROBBON.

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MINUTES BY MR. CHURCHILL.

His Majesty's Government have declared that the conditions under which Chinese coolies are employed on the Witwatersrand are "tainted with slavery,” and are therefore resolved to determine such a system, irrespective of the material loss which may be involved. But the conditions prescribed in the various OrdinancÔI regulating the employment of Chinese on the Witwatersrand, evil though they be, are never- theless superior to any conditions hitherto prescribed by foreign countries in such cases. If therefore His Majesty's Government consider themselves bound to terminate the existing system of Chinese labour in South Africa, and to forgo themselves, or to deprive the Transvaal of, any profit resulting therefrom, all the more are they bound to abatain themselves from any participation in the profits arising from the conveyance of coolies to conditions of servitude not less and possibly more "tainted with slavery" than those which have been demonnoed upon the Witwatersrand. It appears to be enjoined upon His Majesty's Government, if they are to maintain a consistant and defensible policy, that they shall in no case allow Chinese coolies to be carried to foreign countries in British ships, without asuring themselves beforehand that the conditions under which those coolies will be employed are so far superior to the Witwatersrand conditions as to be wholly unobjectionable. Is this likely to be the Is Mexico for instance likely to practise a strictness in the conditions of her inde labour than Parliamentary vigilance and

has enforced upon the Transvaal ? And how are we to satisfy ourselvas? Would Mexico in its present state of development consent to be thus judged by the aquats of a foreign Power upon a question of humanity and morala ? Would the United States aubunit to such an inquisition? And even so what probability there of a favourable result ?

It is therefore submitind that this Incrative though it may ho-

sot be carried

on by British subjost nader tim suthority

the British Government. Still

that His Majesty's Gove

the restraints which observed for more then selves take positivo existing Ordinanes, mach a traffic. – Las this particular

Oetober 25, 19

October

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Opposition upon the New Hebrides Convention shows very clearly the sort of use that will be made of the action to which we are asked to commit ourselves; and whereas in the case of the New Hebrides Convention there were no real grounds for a charge of inconsistency, there appears to me to be considerable ground in this natter of which fall advantage will be taken in the House and in the country.

February 16th, 1907.

W. S. C.

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