CO885-(11-13) — Page 374

PUBLIC RECORD OFFICE

السائل.

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CO.

Reference :-

885

12 PUBLIC RECORD OFFICE, LONDON

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foreign, which might attempt to evade it. A copy of a treaty which had already been entered into with the above object was sent therewith. Your Lordship, however, desired Mr. Malcolm to call our attention to the accompanying extract from a letter of the Foreign Office upon that subject.

10. That in the case of the Gold Coast, which was somewhat analogous to the present, Her Majesty's Government claimed as British territory only the forts upon the coast, and it was only of late years that direct jurisdiction over the Protectorate had been assumed. Nevertheless, duties were always claimed and paid on goods landed on any part of the coast, though no stronger title than sufferance on the part of Chiefs could be shown for the collection of duties outside the limits of the forts.

11. That your Lordship would be glad to be able to place the rivers in the neigh- bourhood of Sierra Leone in the same position as regarded customs duties as the Gold Coast, and your Lordship desired Mr. Malcolm to request that we would favour you with our opinion-

1. Whether it would be competent for Her Majesty by any means, short of taking actual possession of the banks of the rivers in question, to acquire a right to levy customs duties thereon upon British and foreign vessels ?

2. That if it was competent for Her Majesty to acquire such a right, in what form should it be conferred upon her? By a mere cession of the right to levy dues, or by a cession of that right coupled with a right of occupation, or by anything in the nature of a lease, or how?

3. That it was very desirable, if possible, to make Freetown the only port of entry for vessels coming from beyond sea to the coast about Sierra Leone. Would it be possible by acquiring such a right of levying duties as aforesaid to require vessels to pay all such duties at Freetown ?

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

Report

That although there would be no objection in principle to enforcing the duties if they were granted to Her Majesty as lessee from the native Chiefs, yet, inasmuch, as the act of enforcing them would in that case depend for its validity upon the title of the lessors, we think it would be extremely difficult to prove that title in the event of it being questioned, especially as we understand that the area over which the duties are intended to be levied is not an area held in common by all the Chiefs, but an area made up of several territories, each of which is claimed by a separate Chief.

Under these circumstances, we submit for your Lordship's consideration whether it would not be safer, and at all events free from the difficulties we have pointed out, if a slip of territory along the beach and the banks of the rivers were ceded to Her Majesty. In that event Her Majesty could enforce as one of the ordinary rights of sovereignty the duties from all vessels frequenting the coast line in question.

(Signed)

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

4

We have, &c.,

JOHN HOLKER.

HARDINGE S. GIFFARD.

8729.

No. 140.

(CANADA.)

LAW OFFICERS to FOREIGN OFFICE.

MY LORD,

We were honoured with your Lordship's commands, signified in Lord Tenterden's letter of the 11th of May, stating that he was directed by your Lordship to transmit

Temple, 2nd June 1877. to us the accompanying correspondence as marked in the margin, relative to the case of Peter Martin, a prisoner who was conveyed in custody from Lake Town to Victoria, in British Columbia, by the Stickine River, a portion of the journey being effected through Alaska. That the party landed on the bank of the river for the cooking food, and the prisoner there attempted to escape, but was overpowered and conveyed to Victoria, where he was tried for that offence and sentenced to imprison- purpose of ment. That Peter Martin alleged that he was an American citizen, and the Government of the United States claimed his liberation, not only in respect of the above sentence but of previous sentences under which he was then undergoing imprisonment at Victoria, on the ground that the place where the party landed on the bank of the river was American territory, and that in any case his conveyance by the Stickine through Alaska was illegal.

That the point was one of considerable importance, involving as it did, among other matters, the question of the right to the free navigation of the Stickine through Alaska, which was conceded to British subjects by a Convention entered into between Great Britain and Russia in 1825.

Lord Tenterden was further pleased to transmit to us a memorandum which had been drawn up at the Foreign Office containing a précis of the facts; and to request that we would favour your Lordship with our opinion on the several points submitted for consideration at pp. 8 and 9, and advise your Lordship generally as to the course which we would recommend in relation to the case.

Lord Tenterden was pleased to add that maps of the locality referred to were attached to the Report of the Committee of the Privy Council of Canada, which formed the first enclosure in the letter of the Colonial Office to the Foreign Office of the 22nd of March 1877.

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

Report

That in advising your Lordship upon the seven questions raised in the memorandum of Sir J. Pauncefote, and submitted for our consideration, we will deal in the first place with the last five questions.

1. Whether Great Britain on the sale of Alaska by Russia to the United States in 1867 lost her rights to the free and unrestricted navigation of the rivers flowing through that territory to the sea secured to her by the Convention with Russia of 1825 depends upon the construction of the sixth clause of the Convention of 1825.

That clause gives to British subjects the right of free navigation upon the rivers in question in perpetuity, and Russia could not in our opinion voluntarily and without the consent of Great Britain withdraw this permission.

By clause six, however, of the Treaty of the 30th March 1867, between Russia and the United States, Russia declared the cession of the territory and dominion to be free and unencumbered by any reservation, &c., and did therefore virtually revoke the permission she had granted, and by so doing gave Great Britain ground for serious complaint.

2. Whatever may have been the nature of the right conferred upon Great Britain by the Convention of 1825, we are of opinion that by the subsequent conduct of her Government, especially by the negotiations which led to the Treaty of Washington, and by that Treaty itself she has lost that right. It may be suggested, no doubt, that the 26th clause of the Treaty of Washington was merely declaratory, but we cannot take this view. We consider that fairly construed the stipulations in that clause give new rights and amount to that extent, and in that sense, to an admission that any former rights were abrogated.

▲ 12916.-136. 25.-12/84.