CO885-6 — Page 123

PUBLIC RECORD OFFICE

Reference :-

TTIC.O. 882

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

PUBLIC RECORD OFFICE, LONDON

30

China. We have deliberately adopted the leasehold course so as to follow the example of Germany and Russia, and to avoid accusations of going one better and beginning the break up of China. “P

Shall Bee Sir Richard Webster and ask whether there is any way of proceeding which will avoid "part of Her Majesty's dominions" and the technical difficulties raised by Mr. Davidson ?

Foreign Office, February 28, 1899.

How do you govern Cyprus ?

Memorandum by Mr. Farnall annexed.

Foreign Office, March 1, 1899.

MEMORANDUM BY MR. FARNALL.

F. B.

S.

F. B.

Note on the Course followed in Constituting the Administration of Cyprus in 1878.

The Convention of the 4th June, 1878 provided (Article I) that the Island of Cyprus should be "assigned" to be "occupied and administered by England.”

Doubts arose as to how far legislative, as opposed to administrative authority, had by these words been conveyed to the Queen. An additional Article to the Convention was therefore negotiated, which contained the following:

"It is understood between the High Contracting l'arties

that His Majesty

the Sultan, in assigning the Island of Cyprus to be occupied and administered by England, has thereby transferred to and vested in Her Majesty the Queen

full powers for making laws and Conventions for the government of the island in Her Majesty's name, and for the regulation of its commercial and Consular relations and affairs free from the Porte's control."

Under these provisions an Order in Council was passed on the 14th September, 1878, in accordance with the Foreign Jurisdiction Acts, regulating the appointment of a High Commissioner and of a Legislative Council for Cyprus.

One of the first Ordinances, or laws, passed by the Legislative Council was the High Court of Justice Ordinance." It had jurisdiction, civil and criminal, in all cases other than such as would, had the Cyprus Convention not been made, have been under the sole jurisdietion of the Ottoman Courts, i.e., it had jurisdiction in all cases which, under Ottoman rule, had been tried in the various Consular Courts.

The various foreign Powers that had, under the Ottoman capitulations, exercised extra-territorial jurisdiction in Cyprus, allowed their respective subjects to recognize the High Court, and withdrew their extra-territorial Jurisdiction Courts.

Foreign Office, March 1, 1899,

H. F.

It seems to me you may safely assume all the powers you have in Cyprus, with a

S. fresh Order in Council if necessary.

I gather from Lord Salisbury's Minute following Mr. Bertie's of the 1st March last, that his Lordship wishes the analogy of Cyprus to be followed in the case of Wei-bai Wei. That is to say, that Wei-hai Wei is not to be treated as a part of the British dominions, but as "a foreign country" within which Her Majesty the Queen has, "by Treaty, capitulation, grant, usage, sufferance, and other lawful means," jurisdiction, which jurisdiction is exercisable and is to be exercised by means of a judicial scheme to be propounded by Order in Council under "The Foreign Jurisdiction Act, 1890.”

Such an Order in Council is not, of course, applicable in the case of a place within Her Majesty 8 dominions, and is not the kind of Order in Council which the Law Officers had in view when composing the Report of the 22nd February last.

31

That Report proceeds throughout on the postulate that Wei-hai Wei is at present part of Her Majesty's dominions in virtue of cession from China, and I have no doubt (although I have not thought it desirable to confirm my belief by recourse to the Law Officers on the point) that they had in their minds the case of Kowloon and the method adopted, in consultation with themselves, by the Colonial Office for dealing with the jurisdictional question there.

When I originally suggested the case of Cyprus as affording probably the nearest analogy to the state of affairs at Wei-hai Wei, I knew nothing whatever about Kowloon and what had been done there, as no papers in that matter had ever been brought to my notice.

I had no idea, therefore, that a portion of China, which is technically held by Her Majesty as a lessee, had been actually treated as though it were part of the Queen's dominions,

The fact that Kowloon has been alrealy dealt with, rightly or wrongly, on this footing, seems to me to materially increase the difficulty in dealing with another part of China (Wei-hai Wei) in a different fashion. But I assume that this point has been duly considered, and that it has been decided that the balance of political advantage and convenience is, notwithstanding the rather contradictory recent precedent of Kowloon, in favour of treating Wei-hai Wei as a celestial Cyprus.

If these assumptions be correct, then it remains for Mr. Gray to prepare some judicial scheme on the analogy of that applied to Cyprus, and to embody it in au Order in Council.

When we send the draft Order thus prepared to the Law Officers we can explain

to them that for reasons of policy it has been considered impossible to treat Wei-hai Wei as part of Her Majesty's dominions, and that, therefore, the Cyprus precedent, rather than that of Kowloon, has been adopted.

2. But the observations of the Law Officers with reference to dealing, in the interim, pending the establishment of a judicial system by Order in Council at Wei-hai Wei, with all crimes committed by British subjects or subjects of countries other than China, according to naval law, must, I think, be read in connection with the "Leit-Motiv" of the Law Officers' report, which is that Wei-hai Wei is to be treated as part of the British dominions.

It seems to me that even on this assumption there would be considerable technical difficulty in dealing with British subjects and foreigners, who were in no way subject to naval discipline, under naval law, but the difficulty of applying naval law to such persons in a foreign country would be even greater.

Naval law is, so far as I understand the phrase, the law which is applicable to persons who are serving in the navy. In time of war it can, no doubt, be applied to a place which is in naval occupation, but in this case the place occupied is, for the time being, considered as part of the territory of the State whose navy occupies it.

But Wei-hai Wei, treated on the Cyprus analogy, is not a part of the Queen's dominions for the time being either through hostile naval occupation or otherwise.

I do not, therefore, think that if we reject the Law Officers' postulate as to Wei-hai Wei being part of the Queen's dominions we are entitled, on their authority, to instruct the Admiralty in this sense.

Even accepting their postulate I should have personally rather doubted whether naval law was applicable, but we could, at any rate, have told the Admiralty that the Law Officers had so advised with a clear conscience. But now?

W. E. D.

Foreign Office, March 11, 1899.

Ascension is governed by naval law. Therefore there is a naval law capable of being administered on dry land. Why not apply this law, as well as any other, to a leased territory? It is a point on which the Officer in Command is not hampered by any... special enactment.

S..

•