CO885-(15-16) — Page 623

PUBLIC RECORD OFFICE

Reference :-

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

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

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the law for the time being in force in and for England, and with the powers' vested in and according to the course of procedure and practice observed by and before Courts of Justice and Justices of the Peace in England, according to their respective jurisdiction and authorities."

That you were advised that there was some doubt whether the provisions of that section imported the substance of the Common Law of England, under which gold and silver mines would vest in the Crown: that it would be seen that the jurisdiction was to be exercised in conformity with the substance of the law for the time being in force in and for England only so far as circumstances admitted.

That Mr. Lambert was accordingly to request that we would take the papers into our consideration, and advise whether---

(1.) It was open to the Government of the Protectorate, to grant certificates of occupation of waste lands in the Protectorate, subject to such conditions as to reservation of minerals of any kind as the Government might think fit?

(2.) Whether in virtue of the declaration of a Protectorate the Crown was entitled to mines of gold and silver and other mines in lands in the occupation of the natives of the Protectorate and

(3.) If the second question was answered in the negative, whether a right to minerals in such lands could be conferred on the Crown by legislation, and, if so, whether section 20 of the Western Pacific Order in Council, 1893, introduced into the Protectorate, as regards lands occupied by the natives, the rule of English law under which mines of gold and silver were the property of the Crown?

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

Report-

1. That we are of opinion that the Crown has the right to grant certificates of occupation of waste lands in the Protectorate, subject to such conditions as to reservation of minerals, or otherwise, as it may think fit.

Whether this power of the Crown may be exercised by the local Government depends upon the authority conferred upon it by the Crown--as to which we are not instructed.

2 and 3. The mere declaration of a Protectorate does not, in our opinion, vest in the Crown a proprietary right in mines of any kind under lands in the occupation of the natives. Nor can it be said that section 20 of the Pacific Order in Council, But the 1893, vested mines of gold and silver under such lands in the Crown. Crown may, if it pleases, acquire such a right with regard to any mines under such lands by an Order in Council declaring that the property in such mines and minerals is in the Crown, and, if necessary, authorizing the local Government to grant certi- ficates in respect thereof on such terms as it may think fit as to royalty or otherwise..

We have, &c.,

RUFUS D. ISAACS. JOHN SIMON.

The Right Honourable

Lewis Harcourt, M.P.,

&c.,

&c.,

&c.

3046

SIR,

No. 153.

(HONG KONG.) LAW OFFICERS to COLONIAL OFFICE.

[Question whether the Letters Patent of 22nd October, 1886, are still in force.]

Law Officers' Department, Royal Courts of Justice,

29th January, 1912. We were honoured with your commands signified in Mr. G. V. Fiddes's letter of the 21st October last stating that he was directed by you to inform us that the Governor of Hong Kong had enquired whether the Royal Letters Patent of the 22nd of October, 1866, empowering the officer for the time being administering the Government to pardon criminals convicted of offences by Her late Majesty's Consular Courts in China and Japan, were still in force. That copies of the Letters Patent of 22nd October, 1866, and of all other Letters Patent issued for Hong Kong since that date were sent for our information.

That Mr. Fiddes was to observe that the Letters Patent expressly empowered the Governor of Hong Kong to exercise the royal prerogative of pardon in respect of any British subjects who might be sent to undergo imprisonment in the Colony under the provisions of the China and Japan Order in Council, 1865.

That that Order in Council was repealed by the China and Corea Order in Council, 1904, but that it was expressly provided by Section 169 of the latter Order that such repeal should not take away or abridge any protection or benefit given or to be enjoyed in relation to any of the Orders in Council repealed by the China and Corea Order in Council, 1904. Further, that Section 67 of sub-section 2 of the same Order provided that nothing in the Order should affect the King's pre- . rogative of pardon; and that it was conceived that that provision would apply to any delegation of the prerogative.

That in view of those circumstances and of the fact that the Letters Patent did not appear ever to have been specifically repealed, you were disposed to think that they were still in force; but that you had learnt that the Secretary of State for Foreign Affairs was of opinion that they were not in force at present. That Sir E. Grey considered that they would have remained in force in the case of prisoners who were sent to undergo imprisonment in Hong Kong under the pro- visions of the Order in Council of 1565, but that he added that that question did not now arise, as it was understood, that the oldest sentence at present being served dated back only to September, 1907, i.e., to a date subsequent to the issue of the second Order in Council.

That Mr. Fiddes was therefore to request us to take the papers into our con- sideration and to report whether, in our opinion, the Royal Letters Patent of the 22nd of October, 1866, were still in force.

We have taken the papers into our consideration. and, in obedience to your commands, have the honour to

Report-

Of these

That in our opinion the Letters Patent of 22nd October, 1886, though still in force to the extent of their application, are no longer effective to enable the preroga- tive of pardon to be exercised by the Governor of Hong Kong in the case of all persons who may be convicted under the China and Corea Order of 1904 and sent to Hong Kong for imprisonment. Under the latter Order British subjects convicted in Corea and protected persons" convicted in either China or Corea may be imprisoned at Hong Kong as well as British subjects convicted in China. only the last class, namely, British subjects convicted in China, are within the scope of the Letters Patent of 1866. It is, therefore, necessary, in order to enable the prerogative to be exercised by the Governor in the other cases, that new Letters Patent should issue, and that being the case we consider it desirable that the new Letters Patent should deal with all cases of convictions under the Order of 1904.

We have, &c.,

The Right Honourable Lewis Harcourt, M.P.,

RUFUS D. ISAACS. JOHN SIMON.

&c.,

&c.,

&c.

(22968-9.) Wt. 96-481. 35. 9/19. D & B.