CO885-(11-13) — Page 658

PUBLIC RECORD OFFICE

ཟ། ?། ། ། ། །

C.O.

Reference :-

• 885

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

13 PUBLIC RECORD OFFICE, LONDON

"2. Whether, if a British officer, acting under authority of Her Majesty's Govern- ment, were to proclaim the extension of Her Majesty's sovereignty to the territory in question, it would thereupon become part of Her Majesty's dominions?

"3: Whether, in that case, it would be territory acquired by cession or conquest, so as to give Her Majesty the right to make laws within it?

"4. Whether it would be competent to Her Majesty, by commission under Her Sign Manual and Signet, to appoint an officer to be administrator of the territory, and by proclamation to make laws in the name and on behalf of Her Majesty ?"

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

Report

1. That we are of opinion that legal jurisdiction over persons other than British subjects cannot, under the circumstances, be acquired within the protected area in question if it does not become British soil.

We understand that there is no Native power within that area capable of ceding to the Queen jurisdiction over the Natives, or, in fact, over any one.

2. We are of opinion that if a British officer, acting under authority of Her Majesty's Government for that purpose, were to proclaim the extension of Her Majesty's sovereignty over the territory in question, and were also to assume possession of it, it would thereupon become part of Her Majesty's dominions.

And we think that if Her Majesty were to appoint an officer to administer and govern the territory over which the Protectorate has been declared, and to send him, in pursuance of that appointment, to such territory, that would amount to an assumption of possession on behalf of Her Majesty.

3. We much doubt whether, in such a case, the territory could be said to be acquired either by cession or by conquest. It appears to us that the acquisition must rather be regarded as by settlement; and if this be so, the Statute 23 & 24 Victoria, chap. 121, which empowers the Crown to legislate by Order in Council, or to delegate legislative powers in the manner therein pointed out, in all possessions of Her Majesty not acquired by conquest or cession, and not within the legislative authority of any of Her Majesty's possessions abroad, will apply.

4. We are of opinion that it would be competent to Her Majesty, by commission ander Her Sign Manual, to appoint an officer to be administrator of the territory. Such officer would not have power to make laws by proclamation. We have already pointed out that the power to make laws in such a territory is conferred by the Statute 23 & 24 Victoria, chap. 121.

The Right Hon. the Earl of Derby, K.G.,

&c.

&c.

&c.

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

22,342.

No. 33.

(Home KONG.)

LAW OFFICERS to FOREIGN OFFICE.

MY LORD,

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

Royal Courts of Justice, December 22, 1884. letter of the 11th instant, stating that he was directed to transmit the papers noted in the accompanying list, which related to the observance of neutrality by Great Britain during the hostilities at present existing between France and China.

That we would learn from the printed correspondence with the French Ambassador, and from the letters of the Foreign Office to the Colonial Office, and to Her Majesty's Representatives in China and Japan, that Her Majesty's Government had decided for the present not to issue the usual proclamation of neutrality, but to confine them- selves to a strict enforcement throughout Her Majesty's dominions of the provisions of the Foreign Enlistment Act. That in the letter from the Colonial Office of the 22nd November it was suggested, with especial reference to Hong Kong, Ceylon, and the Straits Settlements, that definite instructions should be given to be Governors of those Colonies as to their duties under section 11 of the Foreign Enlistment Act.

That your Lordship apprehended that no difficulty should arise in that section, and that no special instructions were required, as it did not apply to the furnishing of supplies to belligerent vessels, but only to the fitting out of naval or military expedi- tions, as to which the terms of the section presented no ambiguity; but that your Lordship concurred in the expediency of furnishing the Colonial Governors with general instructions for their guidance in carrying out the provisions of section 10, which related to aiding the warlike equipment of a belligerent vessel.

That the Chinese Minister, in his letter of the 21st of November last, drew attention especially to the question of coaling.

That Sir J. Pauncefote was to refer us to the memoranda by Sir E. Hertslet and Captain Wolfe Murray, which contained certain precedents and citations from various authorities upon those questions.

That your Lordship apprehended that Her Majesty Government were not bound to enforce against French or Chinese vessels those precautions enjoined in the letters to the Admiralty and other Departments which usually accompanied the issue of a formal proclamation of neutrality, but did not come within the terms of the Foreign Enlistment Act, such, for instance, as the prohibition to remain in a British port for more than 24 hours; but that your Lordship would be glad to be favoured with our opinion as to the instructions which might be given with regard to the extent of the repairs which should be allowed to a belligerent vessel, and the quantity of provisions, and especially of coal, which might be supplied to her consistently with the prescriptions of the Foreign Enlistment Act; whether, for instance, the supply of coal should be limi. ted in the manner laid down in the regulations issued by Her Majesty's Government during the Civil War in America, and cited in the passage from Sir E. Cressy's work, referred to in Sir E. Hertslet's memorandum; whether the repairs should be restricted to such as might be strictly necessary to enable a ship to hold the sea on a voyage to the nearest national port, and whether a similar limitation be imposed on the supply of provisions for the crew. Also, whether the Governors of Colonies should be instructed to allow no repairs to be effected, and no supplies furnished to a belligerent vessel, except under the supervision of the local authorities, whose duty it would be to report at once to the Governor any case in which the limits imposed were being transgressed.

That Sir J. Pauncefote was to request that we would take the papers transmitted therewith into our consideration, and that we would favour your Lordship with our opinion on the questions submitted in that letter, and with any general observations which we might have to offer on the case.

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

Report

That we think instructions should be sent to the Colonial Governors with reference to the supply of coal to the belligerents similar in spirit to those issued during the

A 15997.-25. 35.-19/85.

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American War. But we would suggest for consideration whether, having regard to the local situation of the French and Chinese ports, the restriction should be precisely the same. The object should be to prevent such supplies as would assist the naval operations.

We think that instructions should be given that the repairs to be done, and pro- visions to be supplied, should be limited in the manner suggested by your Lordship. We think, too, that the Governors should be instructed to allow no repairs to be effected, and no supplies to be furnished, to a belligerent, except under the supervision of the local authorities, whose duty it would be to report at once to the Governor any case in which the limits imposed were being transgressed.

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