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PUBLIC RECORD OFFICE

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C.O.

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16 PUBLIC RECORD OFFICE, LONDON

ture of the Colony itself. That if, therefore, we considered that the provision in the Straits Settlements Draft Ordinance for the conveyance of fugitive offenders by sea was ultra vires the Colonial Legislature, it would appear to follow that Clause 2 of the Order in Council of 1904 was ultra vires also in so far as it was concerned with matters outside the territorial jurisdiction of the Colony. And that for the reason given above it seemed doubtful how far the corresponding pro- visions in the enactments of the four Federated Malay States (for instance, Section 4 (1) of Negri Sembilan enactment No. 27 of 1904) could be considered valid. That Mr. Bertram Cox was to observe, however, that owing to the contiguity of the Straits Settlements to the Federated Malay States, questions of illegal custody in transitu were not so likely to arise in reference to the conveyance of fugitive offenders between those countries. That the question of the legality of the proce- dure laid down by the Straits Settlements Fugitive Offenders Order, 1904, was not, therefore, of so much practical importance.

That he was to request us to take the papers into our consideration and favour your Lordship with our opinion: (1) Whether the provisions of Article 2 of the Straits Settlements Fugitive Offenders Order, 1904, and Clause 5 (1) of the Straits Settlements Draft Fugitive Offenders Ordinance for the legal custody of fugitive offenders on the high seas, were ultra vires?

(2) Whether it would be competent for a protected State to enact similar pro- visions? and

(3) As to the legal effect of Section 4 (1) of Negri Sembilan enactment No. 27 of 1904 and the corresponding sections of the similar enactments of Perak, Selangor, and Pahang;

(4) Whether the proposals put forward by the Governor could properly be approved?

(5) If not, what procedure could lawfully be adopted to provide for the mutual inter-rendition of prisoners between the territories concerned?

(6) Generally

We have taken the matter into our consideration, and, in obedience to your ship's commands, have the honour to

Report

Lord-

(1) That, in our opinion, the provisions of Article 2 of the Straits Settlements Fugitive Offenders Order, 1904, and of Clause 5 (1) of the Straits Settlements Draft Fugitive Offenders Ordinance for the legal custody of fugitive offenders on the high seas are ultra vires.

(2 and 3) If in any of the protected States there exists any sovereign or other authority which before or apart from the Protectorate had power to legislate extra- territorially, we think that it would be competent for such authority, with the consent of the protecting Power, to enact legislation providing for the legal custody of fugitive offenders on the high seas.

(4) We do not think that the proposals put forward by the Governor of the Straits Settlements can properly be approved in their present form.

(5) In our opinion the proposals for the mutual surrender of fugitive criminals between the territories in question would best be carried out by means of the Fugitive Offenders Act, 1881. We think it may be assumed, though we are without definite instructions on the point, that His Majesty has jurisdiction within the eight Protectorates, and, consequently, it would be competent for His Majesty in the exercise of the power given by Section 36 of the Fugitive Offenders Act to apply the provisions of that Act to each Protectorate as if such Protectorate were a British Possession.

If the question whether His Majesty had jurisdiction in any of the Protec- torates arose in the Courts, it would probably be decided by the Secretary of State under the provisions of Section 4 of the Foreign Jurisdiction Act, 1890.

(6) We have nothing to add.

The Right Honourable

The Earl of Crewe, K.G,

&e. &c.,

&c.,

We have, &c.,

W. S. ROBSON.

S. T. EVANS.

29811

No. 123.

(SOUTH AFRICA.)

LAW OFFICERS to COLONIAL OFFICE.

[Draft Rhodesia Railways Order in Council.]

Royal Courts of Justice, MY LORD,

2nd September, 1909. WE were honoured with your Lordship's commands signified to us in Sir Francis Hopwood's letter of the 12th August last, stating that he was directed by your Lordship to refer to our Report of the 3rd April last, in which we stated that the draft letter submitted to us on the 29th February [? March] last was, in our opinion, a clear and sufficient statement of the position with regard to the draft Rhodesia Railways Order in Council.

That Sir Francis Hopwood was to state that the draft letter was addressed to the British South Africa Company accordingly, and that a copy of their reply was enclosed for our consideration. That a copy of a letter from Lord Selborne, to whom the correspondence was referred, was also enclosed.

That your Lordship would be glad to be advised whether the representations in the Company's letter, which your Lordship understood to be based on the opinion of Sir R. Finlay, inclined us to modify in any way the opinion expressed in our Report of the 19th of February last, and what answer we considered should be returned to the Company, particularly in regard to the meaning of Article 6 of the Charter.

We have taken the matter into our consideration, and in obedience to your Lordship's commands, have the honour to

Report-

That the points raised by Lord Selborne's letter of the 29th July and Mr. Brodie's letter of the 2nd July relate in some measure to questions of policy on which it would be beyond our province to express an opinion, but so far as they relate to questions of law or fact, dealt with in our previous reports, we desire to submit the following observations:-

The Company contend that the proposed Order in Council would prejudicially affect their rights by diminishing the value of their property and seriously curtailing the supply of capital in future. According to this view the possibility or prospect of the railways in Rhodesia being transferred to foreigners is substantial enough to affect their existing capital value. We cannot accept this opinion. The terms of the Charter are so explicit in regard to the necessity of maintaining British influence. and the railways themselves are so obviously necessary for that purpose, that it is difficult to believe any purchaser of their stock would take into account the possi- bility of a transfer to foreigners, and give more for the stock because he believed such a right to exist. We have no doubt whatever that the stock has been dealt in on the faith of the railways remaining, like the Government itself, under British ownership and control, but if the view of the Company be accepted, there seems the more reason for dealing at once with a risk which, if realised, would prove a serious impediment to British administration and influence. We observe that since the application for financial aid from the State was made in July last, the financial position of the Railway Companies has substantially improved, but the fact of such an application having been so recently made seems to give some ground for supposing that the Companies are not absolutely secure 'against the possibility of default in payment of the obligations for which they desire the guarantee of the State. We observe, further, that the Board of Directors of the Railway Companies are said to be willing to undertake that no step towards altering the British character and domicile of the Railway Companies or of their principal representatives shall be taken without leave of His Majesty's Government. Mr. Brodie says that the Com- panies can have no objection to such an undertaking. This seems scarcely consistent with the contention that a restriction of this kind would seriously diminish the

* No. 113.

(14251-2.) Wt. 96-332. 25. 9/09. D & S.

† No. 110.

2

existing capital value of the railways. If the Company have no objection to give legal effect to the proposed restrictions by means of an undertaking, they cannot seriously object to the same result being reached by means of an Order in Council.

With regard to the scope of Article 6 of the Charter, and its effect on the suggestion that the railways might be transferred to foreigners, we see no reason whatever to alter the opinion expressed by us in our report of the 28th July, 1908.*

We have, &c.,

W. S. ROBSON. S. T. EVANS.

The Right Honourable

The Earl of Crewe, K.G.,

&c., &c.,

&c.

• No. 90.