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PUBLIC RECORD OFFICE

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Reference :-

C.O. 885

14 PUBLIC RECORD OFFICE, LONDON

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

2

In obedience to your Lordship's commands, we have taken the papers into our consideration and have the honour to

Report-

1. That in our opinion the Penguin Islands, the Xesibi country, and other territories dealt with by similar Letters Patent and Colonial legislation, have been effectually annexed to the Colony of the Cape of Good Hope.

2. That, in our judgment, the opinion expressed in the report of 25th August last ought to be regarded as limited to New Zealand and any other Colony of which the boundaries are expressly defined by Act of the Imperial Parliament. The Attorney- General, who was a party to that report, so intended it.

3. In reply to your Lordship's request to be favoured with any observations upon the subject generally which we may feel able to make, we think it may be of use to state the principles by which we consider these questions are governed.

Where an Act of the Imperial Parliamont has bestowed a Legislature upon a Colony with fixed limits, or has merely fixed the limits of a Colony, a constitutional organization has been established by that Act, and Her Majesty cannot by Her Royal Prerogative, nor can the Colonial Legislature, nor can both combined, enlarge or diminish that organization, or alter its quality, in eo far as either have been determined by the Imperial Parliament. For that would be to overrule an Act of the Imperial Parliament.

But, unless restrained by an Act of Parliament of the United Kingdom, Her Majesty may lawfully commit the administration and government of any Crown Colony to any person she thinks fit, with or without a scheme of self-government, and she may commit that duty, among others, to the Governor or Government of an adjacent self- governing Colony; and that Government may accept the duty so conferred, by Colonial Statute or otherwise. incorporation, but there is an administration of both territories by one Government. In such a case there is not a complete fusion or And such an arrangement may be altered by Her Majesty with the assent, at all events, of the Colony to whom the duty of Government was assigned.

In cases where a Colony has received self-government by Letters Patent, or Orders in Council, from Her Majesty without Imperial Act of Parliament, it is competent for Her Majesty to grant, and for the Colony to accept, variations of the rights of self- government conferred by Her Majesty, and, among other things, to accept an enlarge- ment or diminution of the territory to be comprised within the Colony. Of such acceptance by the Colony a Colonial Act is the most solemn expression. And in such case no Imperial Act is required to sanction the change, because no Imperial Act created the Constitution or Colony which is the subject of change.

All the reports of our predecessors have been directed, as this report is directed, to pointing out the proper and legal methods of effecting annexation in various cases. None of them deal with the question whether an annexation, even if irregular in the outset, could acquire validity if it has been followed by a de facto incorporation for a long period of time. Constitutional changes questionable in their origin have in Great Britain become lawful by usage, and, if the point arose, we think the same doctrine would be applied to Colonial constitutions. determined according to its own circumstances.

But each case would fall to be

The Most Hon.

The Marquess of Ripon, K.G.,

&c. &c.

&c.

We have, &c.,

R. T. REID.

FRANK LOCKWOOD.

1180/96.

GENTLEMEN,

No. 80A.

(GENERAL.)

FOREIGN OFFICE to LAW OFFICERS.

Foreign Office, February 27, 1895. Tuz Earl of Kimberley has had under his consideration your Report of the 12th instant in regard to the existing situation between France and Madagascar. You state that, in your opinion, there exists a state of hostilities which may involve the exercise of belligerent rights toward British trade, and that "The Foreign Enlistment Act, 1870," makes punishable such a proceeding as dispatching, or allowing to be dispatched, a vessel from the British dominions with intent either that it should be used as a store ship to carry munitions of war, or that it should be used as a transport to convey French troops to the seat of war.

It has, however, been argued (and, in Lord Kimberley's opinion, with some force) that it is open to question whether the Foreign Enlistment Act in any respect applies to the hostilities between France and Madagascar, or, in other words, whether Madagascar is a friendly "foreign State" within the meaning of that Statute.

I have the honour to inclose a copy of the Treaty of Peace and Friendship between France and Madagascar of the 17th December 1885 (Paper A), and to call your attention to Article I., which stipulates as follows :-

"Le Gouvernement de la République représentera Madagascar dans toutes ses relations extérieures. Les Malgaches à l'étranger seront placés sous la protection de la France.'

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Article 1 of the second Declaration between Great Britain and France, signed at London the 5th August 1890 (Paper B), provides that "the Government of Her Britannic Majesty recognizes the Protectorate of France over the Island of Madagascar with its consequences, especially as regards the exequatur of British Consuls and Agents, which must be applied for through the intermediary of the French Resident- General." Great Britain has thus recognised the Protectorate of France over Madagascar, so that the case under consideration must be dealt with on the basis that hostilities are being carried on by a Protecting Power, recognised by Great Britain, against a country over which she has a Protectorate.

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It is conceived that from the relation of protector and protected in the case of two countries there result these consequences :-

1. That all Powers, other than the Protecting Power, are excluded from interference in the internal affairs of the protected country, and from asserting by force directly against the Government of the protected State any claims for redress they may have against it.

2. That the Protecting State, whilst justified in insisting that other Powers shall not forciby obtain redress from the protected State, is bound herself to see that such redress is made, and, in order to perform this international obligation, may have to employ force against the protected State. It follows from this argument that for purely international purposes the protected State may have ceased to be a State. No international right can be asserted against her. If she commits wrongs the shield of the Protecting Power is interposed between her and the aggrieved any international State, whilst her obligation to answer for these wrongs is assumed by the Protecting Power. It is presumed that, if any international wrong is committed against the protected Power, redress would be sought only through the medium of the Protecting Power. In what sense, then, can the protected country be said to remain a State from the international point of view? It would seem that for international purposes her position is the same as if she had been incorporated into the dominions of the protecting country.

This portion of the subject has been treated at some length by the late Mr. W. E. Hall in the last edition of his work on "International Law" pp. 127 et seq.

(3rd edition, 1890),

Protectorates of the nature of the one in question have received a large extension in recent years. The consequences which flow from the nexus of protecting and protected States, whilst they have become of much greater importance, are, on the

90586.-6.

25.-1/96.