CO885-(13-15) — Page 322

6365.

PUBLIC RECORD OFFICE

Reference:-

C.O.8

885

14 PUBLIC RECORD OFFICE, LONDON

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

right of objection existed, that Her Majesty's Government would consider it a contravention of the Agreement.

That Sir Philip Currie was, therefore, to request that we would take the matter into our consideration and favour your Lordship with our view upon it at an early date.

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

Report

That the Agreement between the Powers is contained in the letters of the 14th and 17th June 1875, and its effect is that the Power successful in the Arbitration shall not entertain any proposal for the acquisition of the territory in question by any other Power until the unsuccessful Power has had the opportunity of making a reasonable offer for its acquisition.

•

The Portuguese Government on its part undertook to observe in the matter “ á perfect loyalty to the British Government,'

We are of opinion that while it cannot be said that a Concession to the South African Republic of the right to levy Customs Dues in the territory is a cession of the territory, it is clearly the concession of a sovereign right in relation to the territory, and goes to lessen the value of the territory.

We think, therefore, that it is against the spirit of the Agreement, and may properly be made the subject of remonstrance. It is obvious that, in this way, the sovereign rights might be parted with one by one until the sovereignty of the territory ceased to be of any real value.

The Right Hon. The Earl of Rosebery, K.G..

&c.

&c.

&c.

We have, &c. (Signed)

C. RUSSELL. JOHN RIGBY.

MY LORD,

No. 34.

(Hong Kong.)

LAW OFFICERS to FOREIGN OFFICE.

Royal Courts of Justice, We were honoured with your Lordship's commands (relative to a question

April 5, 1893. of jurisdiction over a foreign merchant-ship in British waters) signified in Sir Thomas Sanderson's letter of the 18th March last, stating:

That a Spanish subject named Fernel had absconded from the Spanish Colony of Manila, having been accused of the embezzlement there of 12,000 dollars. That on the request of the Spanish Consul at Hong Kong, a provisional warrant had been issued for Fernel's arrest in the event of his arriving at Hong Kong, with the view to his extradition.

That Fernel had arrived in the harbour of Hong Kong on board a Spanish vessel, the "Don Juan," and that whilst the British police were searching that vessel, an officer and boat's crew from the Spanish man-of-war happened to be in port, had boarded the “Don Juan," seized the man Fernel, and had "Reina Christina," which him taken on board the Spanish man-of-war, refusing to give him up to the police.

That the Governor of Hong Kong had requested that the man should be handed over to the territorial authorities, and that this request appeared to have been eventually complied with, after some correspondence between the Governor and the Spanish Consul, who maintained that the "Don Juan" retained, in regard to this circumstance, immunity from the jurisdiction of such territorial authorities.

That Fernel was subsequently brought before the Magistrate at Hong Kong upon extradition process in the ordinary manner, and after having been committed to gaol for the statutory period of fifteen days, which must elapse before a surrender by way of extradition, he had doubtless since been handed over to the Spanish Government, although that fact was not actually stated in the correspondence.

That this particular incident had thus been closed satisfactorily, but that the Governor of Hong Kong had .suggested that the matter should be represented diplomatically to the Spanish Government with the view to the prevention of similar incidents in the future.

That no case involving considerations of an exactly analogous nature had, so far as was known to the Foreign Office or to the Admiralty, to whom special reference had been made, yet arisen.

That in 1891, however, a case, certain aspects of which it might be useful to consider in connection with the present inquiry, had arisen. That on that occasion the United States Government had claimed the extradition of T. W. Hoit, a fugitive from the justice of the United States, who was on board of a German mail-steamer within British territorial waters off Southampton, and our attention was called to the reports given upon this case by our predecessors and dated the 26th June and the 7th November 1891, respectively, from the latter of which it appeared that Sir R. Webster had differed in opinion upon the subject from Sir Edward Clarke, who had considered that an extradition warrant could only be executed upon a foreign vessel in British waters when such vessel belonged to the Power claiming extradition, and the fugitive was either a British subject or a subject of such Power.

of

That it appeared to your Lordship that all questions regarding the apprehension persons

in British territorial waters must primarily be governed purely by considera- tions of English municipal law, and that in such case the question whether a particular person was or was not wrongfully arrested was a question which would have to be decided (either on habeas corpus or otherwise) by a British Court administering English or British colonial law, according to the circumstances of the particular case.

That it would therefore seem first necessary to determine what was the municipal law upon the point.

But that, assuming that the municipal law would entirely negative the right of any foreign authority to execute arrests in British waters, even upon the

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