CO885-(13-15) — Page 71

8874.

{

「༴། །

PUBLIC RECORD OFFICE

لسل سلسا

C.O.

Reference :-

-885

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

13 PUBLIC RECORD OFFICE, LONDON

2

We agree with the Report of our predecessors dated the 21st March, 1880, that when a licence, in the form adopted under the present system, has been granted by Her Majesty, and the licensee has occupied the island to which the licence applies and notified his occupation by hoisting the British flag, the island in question becomes part of Her Majesty's dominions, and will remain part of such dominions so long as Her Majesty shall find it expedient to retain the sovereignty thereof."

The Letters Patent of the 10th June, 1868, and the 19th July, 1879, authorise dispositions of islands and other places belonging to Her Majesty, her hoirs, and successors. The Warrant of the 15th September, 1881, only authorises the dealing with lands vested in Her Majesty by virtue of the Royal prerogative, and subject to alienation at her pleasure. Neither the Governor of New South Wales nor the High Commissioner of the Western Pacific, under their respective Letters Patent, nor the Secretary of State, under his Warrant, has, in our opinion, any power to grant licences as to islands which have not become part of Her Majesty's dominions.

As long as the Letters Patent and Warrant are limited as at present, the form of licence should be amended so as to conform with the powers contained in the Letters Patent and Warrant respectively.

We think it desirable that the use of the British flag should be required, so as to show the continous occupation as a part of the dominions of Her Majesty.

If it is desired to grant licences with respect to islands or territories of which no possession has ever been taken, or which do not form part of Her Majesty's dominions, the licences should authorise and empower the licensee to take and hold possession on behalf of Her Majesty, and the use of the British flag should be enjoined.

Letters Patent or Warrants authorising the grant of such licenses should be made or issued, if necessary.

2. We are of opinion that the provisions of the British Settlements Act, 1887, are sufficient to enable jurisdiction to be exercised, and that further legislation is not needed.

We have, &c., (Signed) RICHARD E. WEBSTER.

EDWARD CLARKE.

MY LORD,

No. 119.

(WESTERN PACIFIC.)

LAW OFFICERS to FOREIGN OFFICE.

(Received in Foreign Office letter of May 4.)

We were honoured with your Lordship's commands signified in Sir Julian

Royal Courts of Justice, April 20, 1888. Pauncefote's letter of the 19th ultimo, stating that he was directed by your Lordship to transmit to us the papers noted in the accompanying list relative to the legal position of the German Protectorates in South-west Africa, the South Seas, and elsewhere.

That that question had, as we were aware, been lately under discussion between the Imperial German Government and that of Her Majesty, and had already formed the subject of a considered Memorandum by ourselves with which we were good enough to favour your Lordship on the 29th June last.

That after communication to, and consultation with, the Colonial Office (see Foreign Office to Colonial Office of the 22nd July 1887, and Colonial Office to Foreign Office of the 10th August 1887), a draft of a communication to be addressed to the German Ambassador at the Court of St. James' upon the subject was prepared in accordance with the terms of our Memorandum and with the observations contained in the Colonial Office letter of the 10th August last.

That before, however, the terms of that draft (see enclosure in Foreign Office to Colonial Office of the 22nd December 1887) were finally settled, a despatch was received from Her Majesty's Ambassador at Berlin (Sir E. Malet's No. 344A of the 14th September 1887), forwarding a Memorandum drawn up by Mr. Scott, first Secretary to Her Majesty's Embassy, giving the substance of a series of articles which had appearred in the "Norddeutsche Allgemeine Zeitung' Law, defining the legal status of new German Protectorates and their organisations on German Colonial State in accordance with principles of international law and the constitutional law of the German Empire.

That the question was now placed in a light somewhat different to that in which it was originally submitted to us, in Sir Julian Pauncefote's letter of the 18th December 1886, for it would seem that, if the particular character of the title asserted by Germany over these co-called Protectorates amounted to a suzerainty reducing the condition of the protected State to what had sometimes been called "mi-souveraineté,” the claim on the part of that Government to exercise jurisdiction over the subjects of third Powers in the territories in question might possibly be justified. (See Calvo Dictionnaire Diplomatique," sub-title. "Suzerain, Mi-Souverain, Mi-Souveraineté ;' Bluntschli's "Droit International Codifié," sections 75-78; Vattel, by Pradier Fodéré, vol. i. cap. xvi, sections 192-194, p. 478; J. J. Moser's "Beiträge zum Völkerrecht in Friedenszeiten," i, 508; Heffter's "Das Europäische Völkerrecht" ("Droit Inter- national de l'Europe"), as translated by Bergson, 4th edition, 1883, pp. 49, 50.)

That before, therefore, addressing any further communication to the German Imperial Government upon the matter, your Lordship would be glad to be favoured with our opinion on the further point thus arising, together with any observations which we might desire to add upon the general aspect of the question,

That in case, however, we should see no ground for modifying the views expressed in our Report of the 29th June 1887, your Lordship would be glad to be informed whether the draft of a note to the German Ambassador, enclosed in the letter from the Foreign Office to the Colonial Office of the 22nd December last, met with our approval.

+ 52950.-20 25 - 5,88