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PUBLIC RECORD OFFICE

Reference :-

mmmmmimi C.O. 885

13 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

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In obedience to your Lordship's commands we have the honour to-

Report

That we see no ground, in the matters now brought to our notice, for modifying or adding to our opinion of the 29th June, 1887; and we approve the draft despatch which it is proposed to send to the German Ambassador.

M. L'AMBASSADEUR,

We have, &c., (Signed)

RICHARD E. WEBSTER. EDWARD CLARKE.

List of Papers.

Law Officers, June 29, 1887, and Enclosures.

Mr. Scott, Nos. 268 and 293, 1887.

To Colonial Office, July 22, 1887.

Colonial Office, August 10, 1887.

Sir E. Malet, No. 344, September 14, 1887.

To Colonial Office, December 22, 1887.

Colonial Office, December 30, 1887.

Annex.

Draft of Letter to Count Hatzfeldt.

Foreign Office,

.

1888.

WITH reference to the correspondence which has taken place respecting the right of civil and criminal jurisdiction over the subjects of foreign Statos in the German Protectorates in South-west Africa, the South Seas, and elsewhere, and especially to your Excellency's notes of the 11th May and the 29th August 1886, I have the honour to submit the following observations for the consideration of the German Imperial Government.

In the month of August of last year Her Majesty's Chargé d'Affaires at Berlin was instructed to ascertain whether the State-protected German territories referred to in the Imperial Law on Jurisdiction of the 17th April 1886, had become German territory, and formed part as such of the German Empire, and, if not, and they con- sequently remained foreign territory, to inquire whether, in the opinion of the German Imperial Government, a civilised State assuming the Protectorate of an uncivilised State could lawfully exercise jurisdiction over the subjects of other civilised States residing therein, without the assent of their respective Governments.

This important question was accordingly raised by Mr. Scott in a pro-memoriâ dated the 10th August, 1886, and on the 29th of the same month your Excellency delivered a note verbale of that date, containing the reply of your Government. From the explanations given in that note Her Majesty's Government understand that the territories comprised in the German Protectorates do not form part of the German dominions, but remain foreign territory under German suzerainty, and that the views of the German Imperial Government on the question raised are substantially as follows:-

That a Protectorate proclaimed in the name of His Majesty the Emperor of Germany is not in its terms limited to the persons residing or sojourning in the protected territory, but extends to the district itself, and accordingly has a territorial character.

That all persons being within such a Protectorate are, irrespectively of their nationality, subject to Germap jurisdiction, side by side with which the jurisdiction of any other State could not be exercised.

That the right of exercising jurisdiction in the Protectorates is based upon the fact that the protected territories are placed under the German suzerainty, and the exercise of supreme justice is not dependent upon the territories being declared parts of the German Empire, nor is the German supreme jurisdiction derived from the native Chiefs existing in the Protectorates.

That at the same time, on grounds of expediency, jurisdiction over the Natives has in some cases been left by Treaty in the hands of their Chiefs.

That there can be no doubt as to the practical convenience of the view to which legislative sanction, as far as Germany is concerned, has been given by the German

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Imperial Law of the 17th April 1886, that a country which has submitted to German. protection, or to which, being an uncivilised place, German protection has been extended without any submission, becomes ipso facto subject to the Reichstag, and to the laws made by that body.

It seems, therefore, that the proposition contended for by the German Imperial Government is that it is competent to that Government to establish what may properly be called a Consular Protectorate in a foreign country, that is to say, a Protectorate in virtue of which the German Government, while not claiming the rights or accepting the liabilities of territorial sovereignty, maintain that the subjects of all other Powers become amenable to the jurisdiction of the officer appointed to administer such a Protectorate, and of the Tribunal of the Protectorate by which tho Consular Court is replaced.

If such be the views of the German Imperial Government, Her Majesty's Government are unable to concur in them, and, in their opinion, they are not justified by the accepted principles of international law.

to

The particular form of the Protectorates in question is somewhat new international relations, and no discussion of any such form of government can be found in the earlier writers upon international law. But the main principles which must be regarded are, in the opinion of Her Majesty's Government, well settled; one of these being that the right of jurisdiction over the persons found in any territory belongs only to the power which is entitled to rights of territorial sovereignty. Those rights may be acquired by conquest, by cession, or by settlement, and where they exist, the Power which possesses them is clearly entitled to exercise jurisdiction over all persons coming within the limits of the territory, whether they be Natives of such territory or the subjects (other than Diplomatic Representatives) of a foreign Power.

But no Power has any right, according to international law, to exorcise jurisdiction over the subjects of another Power unless they are residing within its own territorial limits; neither can the municipal laws of any country affect or enlarge its rights under international law.

It would be competent for any civilised Power to obtain, by Treaty with a native Chief, jurisdiction within his territories over the subjects of other foreign civilised States resident within such territories; but the exercise of any such jurisdiction might be made the ground of diplomatic objection by the civilised State to whose subjects it was extended, and it should not, in the view of Her Majesty's Government, be exer- cised without the concurrence of that State, given generally, or in the particular

case.

:

As regards the argument of the Imperial German Government, which is founded on the convenience of the view to which legislative sanction has been given by the German Law of the 17th April 1886, a practical solution of the question may perhaps be found in a reciprocal agreement as to jurisdiction. If, as may be presumed, it is proposed to establish in the German Protectorates, and especially in German New Guinea, legal tribunals to which foreign States can safely intrust the interests of their respective subjects, Her Majesty's Government would be prepared to assent to the exercise of jurisdiction over British subjects in German Protectorates, provided that a reciprocal jurisdiction may be exercised in British Protectorates over German subjects.

The question will not arise with respect to British New Guinea, as that territory will shortly be formally annexed to Hor Majesty's dominions, when there will be competent legal officers appointed for the trial of grave cases, with an appeal in certain cases to the Supreme Court of Queensland. But in regard to the British and German Protectorates generally, I have the honour to submit to your Excellency, for tho consideration of your Government, the expediency of concluding an arrangoment based upon the above suggestion.

I have, &c.