CO885(2-3) — Page 562

PUBLIC RECORD OFFICE

Reference

FTTT C.O.885

3 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE

COPYRIGHT PHOTOGRAPH-NOT TO

BE REPRODUCED PHOTOGRAPHIC-B3

New Zealand.

South Australia.

Tasma

Victoria.

Cape.

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China, except under licence conditioned with a view to prevent them from being disposed of to the Insurgents

"I am, &c. (Signed) "E HAMMOND,

P.S.-I am at the same time to inclose a copy of the despatch which will be addressed to Mr. Bruce on this subject, and which, together with my present letter, has been submitted to the Law Officers, and is concurred in by them.

"E IL"

The powers possessed by the Government of New Zealand under the Local Customs Act of 1858, were, it is reported, exercised "by Order in Council on the 28th of June, 1867, to absolutely prohibit the exportation of fire-arms, gunpowder, munitions of war, and warlike stores to the South Sea Islanders."

The powers in But question would appear to have been not well exercised in this case. the irregularity seems not to have presented itself to the attention of Her Majesty's Government. I gather from the following sentence in the Governor's despatch (No. 43 of the 4th of July, 1874,) that the prohibition is a subsisting one, "There is no other like prohibition in existence."

The powers possessed by the South Australian Government under the present law have not been exercised, but its powers under a former Customs Law were exercised by a Proclamation declaring a total prohibition, which was published in a Gazette of the 7th of August, 1863. This Proclamation was revoked by another Proclamation, dated the 15th of October, 1863, which instead prohibited export generally except under licence. This exercise of power no doubt had relation to the New Zealand rebellion.

There is a remarkable Proclamation to be found in the "South Australian Gazette," dated the 24th of June, 1856. It was apparently not promulgated in virtue of any law. It declared that certain specified articles should be "deemed contraband of war," and that the exportation thereof was prohibited. The Proclamation has an argumentative recital which indicates, in effect, that it was promulgated in aid of the Imperial Orders in Council then in force, forbidding exportation of material of war except under bond to enter the articles of export at a specified port for consumption. Their operation might, it was argued, have been evaded by exporting the goods to an innocent Colonial port (which would be a satisfaction of the condition of the bond), and thence re-exporting them to a hostile port. The legal merits of the Proclamation are, however, now of little interest, but the fraud thus guarded against shows how necessary it is that every Colony should possess a power of prohibiting the export of arms, if for no other purpose at all events to insure the efficient operation of a prohibition existing in the United Kingdom, which shippers might otherwise successfully evade by consigning to a Colonial port where no prohibitory power existed.

The powers possessed by the Government of Tasmania under the present law upon the subject (Act No. 3 of 25 Viet., s. 104) have not been exercised. But on the 30th of April, 1860, the then Governor of the Colony, there being at the time no law upon the subject, issued a Proclamation forbidding generally the exportation of munitions of war, and the original prohibitory law, viz., No. 13 of the 24th of Victoria, passed on the 4th of October, 1860, was made to relate back to the 30th of April, so as to protect this exercise of authority, the occasion for which was the outbreak of the New Zealand war.

The powers possessed by the Government of Victoria under the Customs Act of 1857, s. 122, were similarly exercised by a Proclamation dated the 17th of April, 1860, forbidding exportation generally. By subsequent executive regulations the prohibition was relaxed in favour of approved consignees resident elsewhere than in New Zealand. But this course being regarded as inconvenient, the original Proclamation was revoked by one of the 8th of July, 1868, which went on to prohibit exportation to New Zealand specially a course which, as already stated, has been condemned by the Law Officers of the Crown.

III

The Government of the Cape of Good Hope has no general power of restricting the export of arms, such as is possessed by the English and so many Colonial Governments, but it has a most stringent body of law designed primarily to prevent the supply of ammunition and arms to the native population of South

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Africa, whether dwelling within or beyond the limits of the Cape Colony. These laws, which are noted below, place the trade in munitions of war,

whether beyond the inland borders of the Colony, within the Colony, or by sea, completely under the control of the Executive Government.

No munitions of war can be shipped from the Colony except with the written permission of the nearest chief officer of Customs, and when the ship in which they are laden is to touch at any port in Africa, a bond is taken from the master to produce a certificate from a competent local authority that the munitions of war have been disposed of in the manner set forth in his application for a licence of export. Within the Colony, all munitions of war must be kept by licenced storekeepers, and no sale or transfer is allowed except by permission of a Magistrate. Trade with natives beyond the Colony is (Ordinance No. 81 of 1830) conducted under Government licence, and persons so trading are required to furnish the Government with a statement of the arms and munitions of war which they take with them on trade expeditions, and, on their return to account for any deficiency in their stock. With such restrictions on the trade, it naturally results that the supplies of the material of war are extremely limited at any time, and that there is no available surplus for export trade. The powers of the Government have been exclusively used in furtherance of its native or local policy. The following extract from Sir Henry Barkly's despatch No. 75 of the 6th of July, 1875, will explain the two most recent instances of their use:—

"I will only add, as some of the latter class (Proclamations) caqnot, now be found, that, during the existence of hostilities in the years 1865-68, between the Orange Free State and the Basuto nation, my Predecessor found it necessary, notwithstanding the provisions of the Convention of 1854, to exeivise the power vested in him by Ordinance No. 2 of 1853, and to prohibit the supply of arms and ammuni- tion to the Government of the former, in consequence of their having aciēd in a manner which he regarded as unfriendly, and likely to induce Her Majesty's subjects to infringe our Proclination of striet neutrality. Further, that, within the last few months, I felt it my duty, acting upon urgent representations from the Government of Natal, who were apprehensive of the natives of Zululand obtaining surreptitious supplies of arms and ammunition, to refuse assent to the transshipment, from one of the Union Company's steamers, of an extensive invoice of the latter article, intended, as alleged, for trade at Mozambique, until the agents of the Company hud entered into a lonil to produce, in due course, a certificate from the authorities at that port, of its having icen netually so delivered and dealt with."

The powers possessed by the Government of Jamaica are stated by the Gover- nor (No. 154 of 1st October, 1874), to be derived from an Act of the Legislature No. 23 of the 25th of Victoria. The necessary machinery for enforcing this Act was from time to time supplied by temporary laws, which have now been superseded by a permanent and elaborate one, No. 23 of 1873, styled, "A Law in Aid of 23 Victoria, Chapter 23.”

It has been held, in Jamaica, and the view was adopted by the Secretary of State, that the power of the Governor was not such as to admit of his permitting exportation in particular cases. It has been the constant practice of the Imperial Government to permit exportation in particular cases; and I do not see anything in the language of the two laws, justifying the opinion that the powers which they respectively confer, are of a different quality in this respect. However, the matter is of little importance, as by a Local Law, No. 17 of 1871, the Governor of Jamaira has received authority to permit export in particular cases.

The powers possessed by the Jamaica Government have been twice exercised under the circumstances detailed in the annexed extract from the Governor's despatch :-

"On 28th of October, 1865, Governor Eyre issued a Proclamation prohibiting the exportation of arms and ammunition to any place within the Territory of Hayti. It may be observed that there was then another law in force on the subject of the prohibition of the export of arms and ammunition of war, viz., the 11th Viet, cap. 4, which was a temporary law, and has since expired. It was deemed advisable to issue this Proclamation as attempts were made to supply a faction in the neighbouring Island of Hayti with arms and anununition slipped from Jannien. The President of the Republic of Hayti, recognized as such by Her Majesty's Government, was then endeavouring to subalue a Révolution which at length compelled him to ablicate.

"On the 7th July, 1869, a general Proclamation was issued, prohibiting the exportation of material of war from this skind. This Proclamation was made in consequence of the progress of events in the neighbouring Islands of Cuba and Hayti."

No. 81, of 1830; No. 2, of 1853; No. 14, of 1857, continuing and amending No. 2, of 1833; No. 28, of 1864, continuing Nos, 2, of 1853, and 14, of 1857.

Jamaica.