CO885-(13-15) — Page 280

PUBLIC RECORD OFFICE

Reference :-

TILTIC.O.

سلسل

885

14 PUBLIC RECORD OFFICE, LONDON

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

That the chief objection that your Lordship had urged upon the French Ambas- sador had been that a system of Judiciary adopted without such a Decree was, in practice, entirely unworkable; that its Decrees would have to be enforced, not only without the assistance of the Government of the country, but in direct defiance of it; and that, except under the condition of a permanent military occupation, such a proposal was quite impracticable.

That the French Government urged, in reply, the acceptance of a tentative system which could be terminated if in practice it should be found unworkable. That before, however, that compromise could be considered, it was necessary to determine whether, as a matter of principle, the proposed measure was admissible.

That there were two points of view from which objections might be taken in principle, to the establishment of the proposed Judiciary in despite of the Govern- ment of the country where it was to hold its Courts. That it seemed, in the first place, necessary to inquire from whom did such Tribunals derive their jurisdiction. Not, apparently, from the Government of the country-for that was hostile. Not, apparently, from the French Government, for that had neither annexed the country, nor attained the influence in that councils of the actual Government which could of itself authorise the exercise of such jurisdiction. Not, as was apprehended, from our own Sovereign, for it was believed that no Act existed enabling her to delegate her jurisdiction in any country, in spite of the Rulers of the soil, to a third Power which had itself acquired no legal title to jurisdiction from such Rulers. But if the Courts which it was proposed to establish drew their jurisdiction from no legal source, were they theoretically in any better condition than Tribunals which might be established by mere freebooters or pirates? Would their Decrees be binding in the view of English Tribunals upon anybody? Would those Decrees, again, in the view of the English Tribunals, cover and protect the action of any one who might help to execute them? Would they be an answer to a charge of assault, or of breaking into a dwelling-place, or of manslaughter, or of any other infraction of personal rights?

That, secondly, it seemed necessary to inquire in what position would the establish- ment of such Tribunals, under present circumstances, place us towards the Govern- ment of Madagascar? It was a Government which we had recognised, for we had Treaties with it, and by its consent had exterritorial jurisdiction over our own subjects within the limits of the Malagasy dominions. Would the surrender of such a power, and the substitution for it of a totally different system of jurisdiction which was repudiated by the Hova Government itself, be consistent with our relations of international agreement and comity towards that Government? not be rather in the nature of an act of war?

Would they Would it affect the validity of the

Treaties which exist? Would it, as some persons had said, destroy the rights of exterritoriality which we possessed, without substituting anything except the Hova Tribunals in place of those rights?

That as far as was known the French proposal was entirely without precedent, and that there appeared to be no case which bore even a distant analogy to it.

That your Lordship would, subject to our opinion and advice, be rather disposed to maintain that judicial jurisdiction was an attribute of sovereignty, and inseparable from it that it might be delegated to another by the Sovereign, but that it could note be injected into the territory of a third Power by a nation which had not been able to cause its own sovereignty to be accepted there.

And that, of course, if there was any foundation for the apprehensions above expressed, and if the line of argument above indicated was generally sound, it would not be competent for this country to accept the proposed establishment, even on the footing of a tentative measure.

That, having regard to the peculiar nature of the case, your Lordship thought it might be more convenient to us if you abstained from putting, in the first instance, a number of specific questions, but requested us to be good enough to advise you generally upon the case as raised by the reference and accompanying papers.

We have taken the matter into our consideration, and, in obedience to your Lordship's commands, have the honour to

Report-

That, in our opinion, the proposal to surrender to the French Tribunals in Madagascar Her Majesty's extra-territorial jurisdiction over British subjects, without the consent of the Hova Government, is entirely inadmissible—even as a tentative or temporary

measure.

3

The rights enjoyed by Her Majesty's Government, under Article XI. of the Treaty of 1865, are to be exercised by the British Consul, or other officer duly appointed for the purpose by Her Majesty, and cannot, without the consent of the Hova Government, be delegated to the Representatives or officers of another Power.

We have, do. (Signed)

The Most Hon. the Marquis of Salisbury, K.G.,

&c.

&c.

&c.

RICHARD E. WEBSTER. EDWARD CLARKE.

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