CO885-(10-11) — Page 570

(

Q

665.

PUBLIC RECORD OFFICE

Reference :-

ITC.O. 885

ملا

11 PUBLIC RECORD OFFICE, LONDON

No. 449.

(MALTA.)

LAW OFFICERS to FOREIGN OFFICE.

MY LORD,

Lincoln's Inn, January 14, 1867. We are honoured with your Lordship's commands, signified in Mr. Hammond's letter of the 19th ultimo, stating that he was directed to transmit to us the accom- panying letter from the French Ambassador at this Court, referring to the case of the Tunisian ship "Bechir," which was sequestered in the port of Malta by order of the British authorities, at the instance of certain merchants, creditors of the Tunisian Government. That we should perceive that the French Ambassador has been instructed by his Government to ascertain, unofficially, the view taken generally by Her Majesty's Government of this case, involving as it does certain judicial proceed- ings taken against a ship of war of a friendly power in time of peace.

A correspondence which has already taken place upon this subject, and part of which has been referred to Her Majesty's Advocate General, whose report was also enclosed, was also transmitted, and Mr. Hammond was pleased to state that your Lordship thinks it advisable to defer replying to the French Ambassador until your Lordship receives our opinion as to the nature of the answer which should be returned to his Excellency's communication.

We are also honoured with Mr. Hammond's letter of the 1st instant, transmitting a letter and its enclosures from the Colonial Office.

In obedience to your Lordship's commands we have taken this case into considera- tion, and have the honour to

Report

That the Attorney General and Solicitor General agree with the opinion expressed by the Queen's Advocate in his report of the 12th December last, with respect to the exemption of ships of war belonging to a friendly State from all civil process of the State within whose territorial water they happen to be.

If it be thought that an answer entering into details should be given to the letter of the French Minister, we advise that his Excellency be informed that Her Majesty's courts of justice generally, in common with Her Majesty's Government, fully recog- nise the principle of International Law that ships of war of an independent State entering the ports of a foreign friendly power are ordinarily exempt from local jurisdiction, and that when process is issued for the purpose of detaining or interfering with such ships, the courts in this country and in the Colonies and dependencies have ample power to inquire into the character of the vessel, and are bound, upon ascertaining her character to be such as entitles her to immunity from the application of the local law, to set aside the process under which she may have been scized or detained.

That it cannot be assumed that courts of law will come to an erroneous conclusion upon points of law or fact brought before them, but should a case arise in which a decision should be open to complaint, Her Majesty's Government would readily lend to the friendly power against whose vessel process may have issued every assistance in their power for the purpose of promoting before the legal tribunals of the country the just claim of a friendly State for the immunity of her armed vessels from detainer, and for the due recognition of the privilege attaching to such vessels. That Her Majesty's Government have no power of arbitrary interference with the courts of law, so as to prevent them from dealing with questions ofrivilege from arrest or detainer brought before them for determination, but the rules acted upon in the determination of such questions are well defined and established, and are amply sufficient to secure the recognition of the proper rights in Her Majesty's dominions of vessels of war belonging to a foreign State at amity with Her Majesty. It will we think be right to add that this answer is returned to his Excellency's question in the same spirit as that in which the question was proposed. That Her Majesty's Government therefore do not advert particularly to the case of the Tunisian vessel the "Bechir" mentioned in his Excellency's letter, which was some time since brought

• No. 442.

0 16978.--780. 15.--5, 86.

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- | COPYRIGHT PHOTOGRAPH-NUT TUPage 571

BLIC RECORD OFFICE

Reference :-

TILLC.O. 885

سسات

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

11 PUBLIC RECORD OFFICE, LONDON

under the notice of Her Majesty's Government, and which has already received their careful consideration.

With respect to the letter from the Colonial Office (26th December), we are of opinion that the course which Lord Carnarvon has pursued has been right and proper, and we entirely agree with his Lordship that if the law of Malta be not now sufficient (which seems to us improbable) to remove the sequestration from a ship of war of a friendly State, it ought to be made without delay sufficient for this purpose.

The Lord Stanley.

&c.

&o.

:

We have, &c. (Signed)

JOHN ROLT.

JOHN B. KARSLAKE. ROBERT PHILLIMORE.

712.

No. 450.

(Hong Kong.)

LAW OFFICERS to FOREIGN OFFICE.

Lincoln's Inn, January 15, 1867. MY LORD,

We were honoured with your Lordship's commands signified in Mr. Hammond's letter of the 20th December last, in which he stated that he was directed by your Lordship to transmit to us a letter, with its enclosures, from the Colonial Office relative to a question which had arisen as to the extent of British jurisdiction over waters which are within three miles both of Hong Kong and also of the coast of China.

Mr. Hammond was pleased to say that we would perceive that Lord Carnarvon suggested that our opinion should be asked on this point, with a view of coming to an understanding with the Chinese Government in regard to the pursuit of criminals in those waters, and also upon another point, as to what islands were acquired by the British Government on the cession of Hong Kong and Cowloon, and that—-

For facility of reference in regard to these questions, copies of the Treaty of Nankin of 1842, and of the Convention of Peking of 1860, as well as Hertalet, Vol VI., 221.

the Acts of Parliament referred to in the Colonial Office letter, XL, 112.

were sent therewith, and also the Order in Council of March 9th, 1865.

6 & 7 Vios, c. 80.

"

c. 94.

Mr. Hammond also stated that he was to request that we would take the several points into our consideration in connexion with the Law Officers' Reports of the 3rd of December 1862 and 1st of May 1863, on the subject of the Queen's jurisdiction over the banks of the Bahamas and Bermudas, and favour your Lordship with our opinion on the whole matter.

In obedience to your Lordship's commands, we have taken the matters submitted to us into consideration and have the honour to

Report

That in order to advise on the matters submitted to us by your Lordship it is necessary to call attention to the Treaties and Acts of Parliament relating to the cession of Hong Kong by the Emperor of China to Her Majesty.

This island was oaded by the 8rd article of the Treaty of Peace and Amity of 29th August 1842, Hertalet, Vol. VI., p. 222, for special reasons and on special grounds pointed out in that article, and the island was to be governed by such laws and regulations as Her Majesty should see fit to direct.

By Order in Council, 4th January 1843 (page 228, same volume), reciting the 3 & 4 Will. IV., and the Order in Council, 9th December 1833, empowering a court with criminal and admiralty jurisdiction to be held at Canton, or on board a British ship in the port or harbour of Canton, by the Chief Superintendent, Her Majesty ordered that the court should thenceforth be held in the island of Hong Kong and that the same should have jurisdiction for the trial of offences committed by Her Majesty's subjects within the said island, and within the dominions of the Emperor of China, in the ports and havens thereof, and on the high seas within 100 miles of the coast of China.

The Order in Council in effect transferred the court, which had been constituted under the Act of Will. IV., and the Order in Council made in pursuance of the 6th section of that Act from Canton to Hong Kong, and it appears to have treated the jurisdiction for the trial of offences committed by Her Majesty's subjects within the island of Hong Kong on the same footing as offences by the same persone within the dominions of the Emperor of China.

64

In August 1843 the Act of the 6 & 7 Vict c. 80. was passed, by which Her Majesty was empowered to authorise the Superintendent of Trade to enact, with the advice of the Legislative Council of the island of Hong Kong, "such laws and ordinances as may from time to time be required for the peace, order, and good government of "Her Majesty's subjects being within the dominions of the Empire of China, or being "within any ship or vessel at a distance of not more than 100 miles from the coast of China," and section 3 reserves powers to Her Majesty also to make laws for the government of Her Majesty's subjects within similar limits.

66

o 16978-98. 95.-5/86,