CO885-(11-13) — Page 360

1654.

། ། ། །།།

PUBLIC RECORD OFFICE

1

No. 127.

(WESTERN AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

We are honoured with your Lordship's commands, signified in Mr. Meade's letter

Temple, 9th February 1877. of the 28th December last, stating that he was directed by your Lordship to transmit to us the enclosed extract from a Despatch from the Governor of Western Australia, with a report of the superintendent of water police at Fremantle, raising a question in regard to the legality of boarding, or of firing into a foreign vessel, not being within 1876. the territorial waters of the Colony, on board of which certain Fenian convicts took refuge after having escaped from the Colonial prison.

That a question was also raised as to the legality of taking or firing into a boat in which the prisoners were effecting their escape from the Colony for the purpose of joining the above-mentioned vessel, and which boat apparently belonged to the same

vessel.

That Mr. Meade was pleased to say that your Lordship desired him to request that we would take these papers into our consideration, and inform your Lordship whether,

in our opinion, the instructions given on the above points by the Governor of the Colony to the superintendent of the water police were correct.

In obedience to your Lordship's commands we have taken these papers into our consideration, and have the honour to

Report.

48

Catalpa" and

That in our opinion no sound distinction can be drawn between the her boat, and we do not think that the " three-mile limit" affects the question at issue.

In our view, the crew of the "Catalpa," having, in furtherance of a conspiracy with persons under penal restraint, violated British territory, aided in releasing such persons from imprisonment, and carried them away, was liable to be pursued by and stopped anywhere on the high seas; and in case she could not be stopped without resort to such a course we think it was lawful to fire into her.

The Right Hon. the Earl of Carnarvon,

&o.

&c.

&c.

We have, &c., (Signed) JOHN HOLKER.

HARDINGE S. GIFFARD.

27 April

▲ 19916.-126. 25.—12/84.

Reference :-

CO.

885

12 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TOPage 361

2211.

PUBLIC RECORD OFFICE

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CO.

Reference :-

885

12 PUBLIC RECORD OFFICE, LONDON

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

MY LORD,

No. 128.

WESTERN AUSTRALIA.)

LAW OFFICERS to FOREIGN OFFICE.

We are honoured with your Lordship's commands, signified in Sir J. Pauncefote's

Temple, 21st February 1877. letter of the 30th ult., stating that he was directed by your Lordship to transmit to us correspondence relative to a question which had been raised as to the title of the Colony of Western Australia to the Lacepede Islands. That those islands, which had been lately found to contain deposits of guano, were first discovered and surveyed in 1822, by Capt. King, of H.M.S. "Endeavour," and that on the formation of the Colony of Western Australia in 1829 they were included within its limits by the terms of the Governor's Commission. That they were situated at a distance of about 15 miles only from the coast, and no formal possession appeared to have been taken of them on behalf of the Sovereign, but that in 1875 the Colonial Government granted a license to a colonist to occupy them, which license he forfeited through the non-fulfilment of its conditions. That in the following year, however, a Mr. Geddes was licensed by the Colonial Government to remove guano from the islands, with full powers to proceed against trespassers. That he had, however, been but eight days in possession of the island under the license when a Mr. Roberts arrived for the purpose of hoisting the American flag, and removing guano from the islands as agent for a Mr. Lord, who claimed to have taken possession of the islands on behalf and in the name of the United States Government through his agent, Mr. Roberts, and by virtue of a warrant granted by the United States Consul-General at Melbourne under an Act of Congress of 1856 authorising United States citizens to take possession of guano islands on behalf of their Government.

That Mr. Lord claimed to have taken possession of the Lacepede Islands under that Act on the 26th of June 1876, which was eight days after Mr. Geddes had taken possession of them under his license from the Colonial Government, and he insists that the title of Her Majesty to the islands is invalid by reason of the omission on the part of the Colonial Government to take formal possession of them in the name of the Queen.

That having placed before us the foregoing brief statement of facts, Sir J. Paunce- fote was to request that we would take the papers, then sent, into our consideration, and favour your Lordship with our opinion on the specific questions raised by the Secretary of State for the Colonies, as well as on the general questions whether the claim of the United States Government to the Lacepede Islands, which had been set up on their behalf by their consular authorities in Australia, could be supported by international law.

In obedience to your Lordship's commands we have the honour to

Report

That we have considered the 10 Geo. 4. c. 22, which provided for the Government of unoccupied lands on the West Coast of New Holland and the islands adjacent, those settlements being known as Western Australia.

We have also considered the terms of the Commissions of 4th March 1830 and 10th July 1873, granted to the Governors of Western Australia, and defining the boundaries of the Colony which include the Lacepede Islands.

And we are of opinion that the Governor of Western Australia had by the law of this country and by international law the right and the power to direct and license the occupation of and exercise jurisdiction on the Lacepede Islands, if at the time when the occupation was taken and the jurisdiction was first claimed those islands were still neither occupied by the citizens or subjects of any other Government, and not within the jurisdiction of any other Government.

From the facts stated in the papers transmitted to us, it appears that in 1875 the Colonial Government granted a license to a colonist to occupy the islands, and that in 1876 Mr. Geddes was also licensed by the Colonial Government to remove guano, with full powers to proceed against trespassers.

▲ 12916.-127. 25.-12/84.