CO885-(10-11) — Page 572

ILIC RECORD OFFICE

Reference :--

C.O. 885

11 PUBLIC RECORD OFFICE, LONDON

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

ساء

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The commission giving powers to the Superintendent of Trade, issued in pursuance of this Act, will be found in same volume, p. 255, and it bears date August 1849.

The treaty of 8th October 1843, p. 262, does not call for special remarks.

Then follows the Ordinance, 24th January 1844 (ib. 270), vide especially 1, 2, & 3 articles, giving the court of Hong Kong jurisdiction over British subjects committing crimes beyond the limits of Hong Kong.

It is also important to notice the Order in Council, 17th April 1844, same volume, p. 276, and which is framed with reference to the 6 & 7 Viot. o. 94., the Foreign Jurisdiction Act, Hong Kong being appointed as the British Colony wherein orixes and offences committed by British subjects in China should be tried.

Passing over some further Ordinances, relating chiefly to consuls and consular authority, made before 1853 (and which will be found in volumes 7, 8, and 9 of Hartalet), we come to the British Order in Council of 13th June 1853, Hertslet, volume 9, p. 210 (now repealed), which, amongst other things, recites the Foreign Jurisdiction Act and consolidates and amends existing Ordinances.

The Treaty of June 1858 (XI. Hertslet, 86) need not be specially referred to. The Act of 1859, 22 & 23 Vict. c. 9., has no immediate bearing upon the questions proposed to us.

By the Convention of 1860 (XI. Hertalet, p. 112), article 6, that portion of the town- ship Cowloon of which a lease was granted to H. B. Parkes, Esq., is oeded to Her Majesty, "with a view to the maintenance of law and order in and about the harbour " of Hong Kong," the lease being cancelled.

The last Order to which we need advert is that sent to us with these papers, vis., the Order of Her Majesty of the 9th March 1865, establishing a Supreme Court at Shanghai for China and Japan, repealing several Orders, and, amongst others, that of June 1853, and declaring under head XII. the authority and jurisdiction of the courts of China and Japan, and of that of Hong Kong, over British subjects who have com- mitted crimes within British, Chinese, or Japanese vessels, or vessels not lawfully entitled to claim protection of the flag of any state, within 100 miles from the coast of China.

We are informed that no treaty or, as we understand, engagement of any kind is in existence which gives a right to exercise jurisdiction over Chinese subjects within 100 miles of the coast of China, nor is there, as far as we are aware, any express stipulation that the water to the distance or extent of a marine league, or any greater or less distance, from the shores of Hong Kong is to be deemed to be ceded with Hong Kong and to be British territory.

The map which has been sent to us shows generally the geographical position of Hong Kong and its harbour, and the surrounding islands, &c., and the questions proposed for our consideration are whether any and what islands have been acquired by the British Government as appurtenant to Hong Kong or Kowloon, and next what is the extent of jurisdiction, if any, of Her Majesty over the seas surrounding Hong Kong (whether broad seas or straits), or over islands near the coast of Hong Kong which beyond doubt have never been ceded to this country and are not appurtenant to Hong Kong or Kowloon.

As regards the first question, we notice that Stone Cutters Island was a part of the territory included in the lease to H. Parkes, Esq., and we think that (if by that lease and during the continuance of it this island was treated as a "part of the township of Kowloon," in the province of Kwangtung, and if the island has since been occupied by the British as a portion of the part of the township ceded) it may well be considered to be a part of Her Majesty's dominions.

From the information before us we do not think that any other neighbouring island can be claimed as having formed part of the ceded territory.

We think, too, that (it may reasonably be contended that) the whole of the water of the Victoria Harbour between the shores of that part of Kowloon which was ceded and Hong Kong is exclusively under British jurisdiction.

And we also think that water between headlands may also be considered as such. As regards open ses, that is water which extends for considerably more than six miles from the shores of Hong Kong without being met by Chinese lands, we think that (it may reasonably be contended that) for a marine league in extent, such water passed on the cession of Hong Kong to Her Majesty so as to vest in Her Majesty the same rights in and over the same, as that which she possesses in or over the waters to that distance from any other part of Her Majesty's dominions.

But as regards the narrow waters, that is sea which in interrupted by mainland or islands (still part of Chinese territory) less than six miles distant from the coast of

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Hong Kong, we do not think that the rule of the marine league can be considered applicable, and although we think that the free right of passage over these waters may be claimed by Her Majesty for the purpose of having the full use of the ceded territory, Her Majesty cannot claim, in the present state of our treaty engagements with China, exclusive jurisdiction at all events over the marine league from the shores of Hong Kong, but we think that Her Majesty's Government would be, under the circumstances, justified in insisting that the medium filum of such waters should be claimed as the boundary of territorial jurisdiction. In straits, such as the Leymora Pass, we also think that the claim to exclusive jurisdiction cannot be maintained, although in this case again the right from the shore to medium filum (with of course the unlimited privilege of passing and repassing over the whole of the straits) may reasonably be claimed.

We advise, it must be clearly understood, upon the assumption that no custom or usage exists by which the territorial limits of the British and Chinese possessions can be more clearly defined.

The marine league rule is one of which the application must in many cases be controlled by the geographical conformation of the land, by usage, and perhaps by other circumstances.

It is founded on the principle that the state to which the land belongs shall be secured from injury by exercising for this purpose a territorial jurisdiction over adjacent waters. The reason of the thing, aided by usage rather than by any arbitrary law universally applicable and generally recognised, must in each case govern the question of common or exclusive jurisdiction over narrow straits and land-locked

waters.

We are clearly of opinion that the questions involved in the case should if possible be settled by treaty, for in the present state of things no satisfactory conclusion can be arrived at as to the extent of the British territory or jurisdiction.

The Right Hon. Lord Stanley, M.P.,

&c.

&c.

&c.

We have, &c. (Signed)

JOHN ROLT,

JOHN B. KARSLAKE. ROBERT PHILLIMORE.

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