CO885-(13-15) — Page 694

PUBLIC RECORD OFFICE

Reference :-

PLEC.O.

885

14 PUBLIC RECORD OFFICE, LONDON

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

we think it fairly open to doubt whether the enactment of the Commonwealth Bill would not be held to be a declaration of the Legislature that the Parliament of the Commonwealth was to be free from the restraint imposed by that Statute,

Having regard to the large number of Statutes which apply to Australia and Tasmania, great inconvenience might be occasioned if the supremacy of the Imperial Parliament were not preserved. Of course it would be open to Her Majesty to refuse Her assent to any Bill in conflict with an Imperial Statute, but the exercise of this prerogative might occasion a good deal of friction, and it might indeed be contended that upon the view of the construction of the Act which we have suggested as possible-it would be contrary to the spirit of the Act to employ the prerogative for the purpose of restraining the action of the Parliament of the Commonwealth in this manner. We would suggest that some words such as those written in in red ink* should be added at the end of section 109 of the schedule, making it clear that the Colonial Laws Validity Act is to apply to the laws of the Commonwealth.

4. We do not think that the power conferred by section 51 of making laws for the peace, order, and good government of the Commonwealth can be read as confined to the territorial limits of the Commonwealth. It appears to us, having regard to the nature of some of the points on which legislation is contemplated, that it must be intended that such legislation should bind British subjects even beyond the territorial limits of the Commonwealth. Its operation cannot be confined to "subjects" of the Commonwealth— indeed no such description is possible-and the operation of such laws could not in some instances, e.g., X. and XXX., be confined to British subjects residing in the Colony if they are to be of any efficacy. Of course if any attempt were made to bind foreigners beyond territorial limits, the Bill proposing such enactment would be properly vetoed by the Crown. Subject to making it clear that the supremacy of the Imperial Parliament is preserved by the amendment we have suggested in section 109, we think that section 51 of the schedule may be allowed to stand with the exception of XXIX.-"External Affairs." It is not quite clear whether this is intended to be confined to relations with Foreign Powers or whether it would include the relations of the Commonwealth with other parts of the British Empire. In either case this does not seem a suitable subject for legislation by the Parliament of the Commonwealth. Some limiting words should be inserted.

5. The provisions of sections 73 and 74 with regard to appeals to Her Majesty in Council seem to us to be open to very grave objection. There ought to be no appeal to Her Majesty in Council, except from the High Court in any case in which an appeal lies to the High Court, but these sections seem to admit of such an appeal by special leave.

Cases in which an individual alleges that he has been wronged by the interpretation put upon the Constitution of the Commonwealth, or of a State, seem to us to be eminently fit subjects for appeal to Her Majesty in Council, but by clause 1 of section 74 an appeal in such cases is prohibited subject to a proviso in favour of cases in which the interests of some other parts of Her Majesty's dominions are involved. It is impossible to say what meaning would be attributed to this proviso. Parliament of the Commonwealth to limit the matters in which Her Majesty may give The power given to the leave to appeal is a grave inroad on the prerogative, and would in practice probably prove very objectionable, as the only protection left against undesirable legislation of this sort would be the exercise of Her Majesty's veto. We, therefore, suggest that these clauses should be remodelled so as to take away the right of appeal to Her Majesty in Council, except from the High Court in all cases in which an appeal to that court lies, and that in no cases an appeal to Her Majesty in Councilˇshould lie except by special leave to be granted by Her Majesty in Council, or by the court from which the appeal is brought. According to the well-established practice, such leave' would, of course, be granted only in cases of general importance.

The Right Honourable

Joseph Chamberlain, M.P.

&c.,

&c., &c.

We have, &c..

RICHARD E. WEBSTER. ROBERT B. FINLAY.

Shown here in italic. 109. When a law of a State is inconsistent with a law of the Common- wealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid, and the Colonial Laws Validity Art, 1865, shall apply to the Laws of the Commonwealth,

35941/S.

No. 243A.

(SOUTH AFRICA.)

LAW OFFICERS TO FOREIGN OFFICE.

X.

Law Officers' Department, December 23, 1899.

MY LORD.

WE were honoured with your Lordship's commands signified in Mr. Bertie'a letter of the 16th instant, in connexion with the question of the right of a belligerent to search a neutral mail-steamer for the enemy's despatches, and to treat such despatches as contraband of war, particularly in reference to the despatches of Dr. Leyds, the Agent of the South African Republic.

We have taken the matter into our consideration, and have the honour to

Report-

1 and 2. That it appears that Dr. Leyds has been accredited to European Govern- ments as the Diplomatic Agent of the South African Republic.

Under these circumstances, despatches from him not dealing with the conduct of the war and addressed to his Home Government could not possibly be treated as contraband of war. War does not interrupt communication between a belligerent and his Diplomatic Agent with a neutral Power. With regard to despatches of this character, it would make no difference as to seizure or inspection on a neutral ship, whether they were written or despatched in Her Majesty's dominions or in a neutral State.

With regard to despatches addressed by Dr. Leyds to his Government and dealing with matters connected with the war, other considerations arise. We are far from saying that despatches altogether exceeding the sphere of diplomacy and relating directly to the conduct of warlike operations may not, even though written by diplomatic Agent to his Home Government, fall under the head of contraband

#

of war.

But the practical question in the present case is whether, in order to ascertain that such despatches exist, all Dr. Leyds's despatches, and indeed, all the contents of the mail-bag, may be examined.

There is a good deal of authority for saying that the despatches of a Diplomatic Agent are exempt from such examination on a neutral vessel." In our own territory or on board a British vessel they might, of course, be seized like any other property of the enemy. The immunity of such despatches on board a neutral vessel is laid down in the strongest terms by Calvo, "Droit International," 5th edition, vol. iii., p..331,

section 1539.

It is no doubt true that the string of authorities which he cites for this proposition proceed, to some extent, on a misconception of the decision of Sir W. Scott in the "Caroline," 66, Rob. 461, the leading case on the subject; for it must be observed that when that case was decided, the despatches were properly seized as enemy's property, although on board a neutral vessel, and Sir W. Scott was dealing only with the question whether the vessel had incurred condemnation by carrying them.

Since the Declaration of Paris, the neutral flag covers the enemy's property, unless it be contraband; but the current of authority in text writers is undoubtedly in favour of the proposition that, the despatches of a Diplomatic Agent to his own Government are privileged from examination.

In Earl Russell's despatch to Lord Lyons of the 23rd January, 1862, the immunity of diplomatic despatches on neutral vessels was strongly asserted. We submit, for the consideration of Her Majesty's Government, whether it is desirable on the present occasion to put into force a supposed right against the existence of which there is a great body of authority, and in contravention of which the attitude of Her Majesty's Government in the despatch just referred to would certainly be relied on. The German Government would almost certainly protest against such an interference with

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