CO885-(11-13) — Page 590

PUBLIC RECORD OFFICE

CO. 885

Reference :--

12 PUBLIC RECORD OFFICE, LONDON

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2

We would submit for consideration, however, whether in the peculiar circumstances of our position in Cyprus, difficulties may not arise from the erection of such a juris- diction there. The Sultan is still the sovereign of Cyprus, and various foreign Powers have good grounds for contending that they are still entitled to the benefit of the capitulations and the special consular jurisdiction which they create. Court of Cyprus exercised its proposed jurisdiction and condemned a foreign vessel, If the Supreme which had been found in distress on the high seas, to be sold in respect of a salvage award, we can conceive that questions most difficult and embarrassing might be raised.

We have, &c., (Signed) HENRY JAMES.

FARRER HERSCHELL.

The Right Hon. the Earl of Derby,

&c.

&c.

&c.

9809.

No. 297.

(GIBRALTAR.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

WE were honoured with your Lordship's commands, signified in Mr. Herbert's

Royal Courts of Justice, 8th June 1883. letter of the 17th ultimo, stating that he was directed by your Lordship to acquaint us that it had been questioned whether an agreement made in 1838 between the English General commanding the fortress, who was also the Governor of Gibraltar, and the Spanish General at Algeçiras, for the mutual surrender of English and Spanish military deserters, could continue to be acted on without a local Ordinance or Order in Council.

2. That the agreement in question was embodied in the enclosed despatch from Lord Glenelg, the Secretary of State for War and the Colonies, dated the 30th of June 1838, signifying Her Majesty's confirmation of it.

3. That, in connection with that agreement, two questions appeared to your Lordship to arise, first whether it was not a mere convention between two military Commanders, altogether outside the province of civil law; and secondly, whether, assuming that the agreement required to be validated by local civil law, the despatch of Lord Glenelg did not at the time amount to a valid exercise of Her Majesty's legislative authority.

4. That, in connection with the first view of the case, it might be mentioned that the agreement as originally drafted included the case of fugitives from the conscrip- tion, and that it was also at one time during the negotiations proposed to extend it to sailors of the two Royal navies and matriculated" seamen, but that both those proposals were negatived by Her Britannic Majesty's Government as inadmissible, and the agreement was finally concluded in the present form. That it was also to be remembered that Gibraltar throughout its entire extent constituted a fortress, within which the General, over and above his authority as Governor, asserted unquestioned control over the actions of civilians in many matters necessary for the sanitation and military security of the fortress and garrison, whilst his relation to the neighbouring Spanish General at Algeçiras is peculiar, and may be described as one of vigilant observation, for the latter General claims to be also Governor of Gibraltar, and passes to Spanish soldiers are made out by him as for Gibraltar, " temporarily in possession

of the English." That in those circumstances it might perhaps be argued that it was within the competence of the two Generals, quartered side by side under circumstances of some delicacy, to agree, as a matter of military comity, that each should delegate to the other his own authority over deserters, and each agree to exercise that authority on behalf of the other, so as to prevent the mischief and dangers of their quarters becoming infested with a crowd of deserters.

5. Adverting, however, to the alternative view of the matter, Mr. Herbert was to refer us to the case of Jephson v. Reira (3 Knapp, p. 130), and the earlier casos therein cited (p. 152), which went to show that prima facie, in a conquered Colony, the power

of legislation was vested in the Crown, "without any limitation as to the advice under which it may be exercised." That at the time the agreement in question was sanc- tioned the commission of the Governor, in conferring legislative power on him, reserved the power to Her Majesty and her successors "to make and establish from time to time, with the advice and consent of Parliament, or with the advice of their or our Privy Council, all such laws as may to us or them appear necessary for the order, peace, and good government" of Gibraltar.

6. That in this case the records of the Colonial Department showed that Lord Glenelg, on receipt of the agreement, consulted two other Privy Councillors upon it, viz., the Foreign Secretary and the Commander-in-Chief, who both advised its ratifi- cation; and then he himself, as he states, laid it before the Queen, and, as must be assumed, advised her to ratify and confirm it, this advice being that of three Privy Councillors, and as stated, the Queen then commanded him to signify that Her Majesty was pleased to sanction and confirm the convention, which he did in his despatch now laid before us.

7. That in those circumstances it might be argued that Her Majesty validly exercised her power of legislation with the advice of the Privy Council, there being

A 19916.-973. 25.-19/84.