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Hunt v Queen (No 2) [1882] FJLawRp 1; [1876-1897] 1 FLR 59 (18 June 1882)

[1882] 1 FLR 59

SUPREME COURT OF FIJI

Appellate Jurisdiction

HUNT

v

THE QUEEN. (No. 2)

1882 Jun. 18

Prohibition Order - Western Pacific Order in Council, 1877, s. 25 - Naturalisation Act, 1870 - Treaty between Great Britain and Samoa.

On an appeal to the Supreme Court of Fiji against an order of conviction for breach of a prohibition order made by the Deputy Commissioner in Samoa under the Western Pacific Order in Council, 1877, s. 25, on the ground that the defendant, a British subject, was naturalised as a Samoan and had ceased to be within the scope of the Order in Council,

Held, that notwithstanding anything contained in the Naturalisation Act, 1870, in the absence of any corresponding law in Samoa the defendant could not be naturalised as a Samoan and thereby be divested of his allegiance to Her Majesty, but must, as a British subject remain subject to the provisions of the Order in Council.

Other technical objections to the validity of the conviction were overruled.

Mr. Hobday for the appellant.

The Acting Attorney-General (Mr. Solomon) for the respondent.

The facts and arguments sufficiently appear from the judgment.

J. GORRIE, C.J. The question raised in this appeal relates to the administration of justice under the Western Pacific Order in Council, 1877. The appellant contests the right of the High Commissioner to apply to him the prohibition to be within certain limits of the Western Pacific as authorised by the Order in Council on the grounds that, although formerly a British subject, he had now become naturalised as a Samoan and had ceased to be within the scope of the Order; or, at all events, that if such contention could not be implied, then that the conviction by the Deputy Commissioner in Samoa was bad in law because of certain technical grounds which were pleaded by him. There were other grounds in his reasons of appeal, but they were directed against the prohibition order itself, against which it was not competent to appeal.

That part of the case which relates to naturalisation divides itself into two branches:- (1) Can a British subject become naturalised in Samoa? (2) If he can, has the appellant become so naturalised? At the date of the issue of the Order in Council, the Navigators' Islands - the geographical name of the Samoan Group - were included without qualification among those islands in which the High Commissioner's Court was to exercise jurisdiction over the British subjects sojourning therein; but the appellant contends that a significant change has since taken place in the position of Samoa as regards Great Britain, viz., that it has been recognised as a state by a treaty entered into between the Queen and the ruling power in Samoa, and, being so, it becomes such a state as those to which British subjects, under the Naturalisation Act, 1870, may transfer their allegiance. In that Act there is no definition of the foreign states to which allegiance may be transferred, and that question is not likely to create difficulty in the vast majority of cases, as British citizens are not apt to be desirous to transfer their allegiance to any state except the established and recognised powers of the world. Here, however, in these seas we are dealing with communities of men little known to writers on the laws of nations, communities which are not and cannot be recognised as states, or - as in the case of Samoa - with communities of men which are on the borderland between unrecognised hordes and recognised states; and we have to determine, by whatever signs and attributes we can discover, whether Samoa is in such a condition that under the Act of Parliament we have cited a British subject may transfer to her his allegiance so as to cease to be amenable to the High Commissioner's Court. The point is not solved, as might at first sight be supposed, by the treaty itself, which contains a clause recognising the jurisdiction of the High Commissioner's Court over British subjects in Samoa. The contention of the appellant being that he had ceased to be a British subject, the fact that such a clause is in the treaty and that it seems to be one of the most important objects for which the treaty was negotiated is a strong argument that he could not transfer his allegiance; because where a community admits such a right it can scarcely be held to be a state in the sense in which the term is ordinarily used.

But it is not conclusive. There is force in the contention of the appellant that nations, undoubtedly independent and which are recognised as states in the fullest manner, have conceded the jurisdiction to other nations to try the causes of their own subjects when resident within the bounds of those states. But if this important difference in the relations between Great Britain and Samoa - as contrasted with her position as regards civilised powers - is not sufficient to determine the point, to what other test are we to turn? The doctrine of imperial Rome was that a state was such an organised body politic as Rome could declare formal and public war against in the event of a casus belli having arisen. All other bodies of men it treated in true imperial style - as thieves and robbers - the residuum of the community of nations which have no recognised rights. By this test we fear the contention of the appellant would fail. We can scarcely imagine Great Britain declaring a formal and public war against Samoa; while, on the contrary, we have more than once in recent years seen force used to her by captains of men-of-war or by the High Commissioner as Consul-General, just as now practised in the islands admittedly savage.

Turning to the definition of a state as given by Phillimore, vol. i., s. 63, we still find it difficult to give full acceptance to the proposition of the appellant. "A state," says that learned jurist, "may be defined to be a people permanently occupying a fixed territory, bound together by common laws, habits, and customs into one body politic, exercising through the medium of an organised government independent sovereignty and control over all persons and things within its boundaries, capable of making war and peace, and of entering into all international relations with the other communities of the globe." If the expression "exercising through the medium of an organised government independent sovereignty and control over all persons and things within its boundaries" had been omitted from this definition, or if the words had been qualified by a reservation applicable to such as were exempted from the control by special treaty, it would not have been at all inapplicable to Samoa. The Samoan people, who are, clearly distinguishable from other tribes and people in the adjacent islands, permanently occupy a fixed territory, and they are bound together by common laws, habits, and customs into one body politic; they are capable of making war and peace - not indeed that Samoa is able to enter into contests with the Great Powers of the world but with communities of the same calibre as herself - and that she is capable of entering into international relations with the powers of the world, the treaties with Great Britain, Germany and the United States have demonstrated.

Here then we have something very nearly, if not altogether, approaching to the dignity of such a community as would be universally recognised as a state. The sole exception is that she does not exercise sovereignty and control over foreign subjects within her territory. They do not de facto submit to her laws; and consequently another species of jurisdiction is provided for British subjects, both to determine their civil rights and to punish crimes and offences committed by them. If the appellant, Hunt, who may wish to abjure his country, not for any unlawful reasons, but solely from an ambition to manipulate the native chiefs as other adventurers have done elsewhere, is able to denationalise himself, other subjects may do the same whose sole reason would be not to place themselves under Samoan law but to escape from the control of British authority.

While recognising the possibility of such a result, the appellant quoted the case of the Sandwich Islands as a state where both British and American subjects had become naturalised, and where the trusted advisers of the Chief or King, who, under the tutelage of such adventurous naturalised subjects, had been doing the tour of Europe and was received with distinction in the great capitals. I fear the example quoted is not a very happy one of the good effects likely to follow from permitting adventurers, uncontrolled by the authorities of their own country, to have free course for their ambitious designs and crude theories in non-civilised countries. For while some may be able to do good, the majority do nothing but evil, chiefly from their insensate desire to overturn in a few brief years the habits and customs of a race. The visit of the King of the Sandwich Islands to Europe was to look for a population, just as we know from what is passing under our own eyes that he is endeavouring to recruit population from the other islands of the Pacific to replace his own people who are fast perishing. But the case is undoubtedly one in point for the appellant in this case. He may say that he is entitled to his legal rights whether the result of giving him these would be beneficial or the reverse to the Samoan people. And, indeed, I think we may find in this case of the Sandwich Islands something which will be a better test to aid in the decision of the cause than any abstract definition of a state which it is so difficult to apply to a community not anciently recognised as such, and which at its first entrance into international relations with our own country abandons jurisdiction over British subjects sojourning in its territory.

To prove that the Sandwich Islands did claim and exercise the right to receive the subjects of other nations as naturalised subjects of these territories the civil code of the state was quoted and referred to. This shows, what indeed is obvious, that in all organised states such an important step as naturalisation must be recognised, ordained, and controlled by laws. If the nations which maintain relations of amity and intercourse with the community enacting such a law make no protest against it, but accept it as part of the organic law of the community, that of itself is a sufficient recognition of the right. Has any such law been made by the King and Government of Samoa - the "Malo" referred to as being a party to the treaty? If it had, it must, from the relations of Samoa with the three Governments already named, have been the subject of discussion not only of the representatives of the Great Powers with Samoa but among those powers themselves. No such law has been quoted to me, nor has the existence of any such law been alleged. All that has been produced by the appellant in the case is an oath of allegiance, said to have been taken by him, to the King of Samoa, to which he added "and I will certainly cast off and put away and not obey the rule of Her Majesty Victoria the Queen of England." There is nothing to show that the taking of this oath was an act of the Government of Samoa or recognised by them. It was simply, so far as shown, a personal act of the Chief or King to whom the appellant was then secretary; there is still less to show that what was then done was in conformity with a law duly discussed and adopted by the authorities of Samoa. If the appellant contends that the King had power to receive him in this manner as a Samoan, without any law or because there was no law, then what one king can do another may undo. The oath was sworn to and accepted by Malietoa I. (called Talavou), but Malietoa II., as proved in the proceedings, has determined to have nothing to do with the appellant. His father, he said, had trouble about Hunt. He thought his own comfort in his government to be worth more to him than the advancement of the ambitious schemes of a foreigner. It is quite clear that Hunt cannot be regarded as a Samoan if there is no law to make him one and the ruling chief or authority repudiates him.

I cannot come to any other conclusion, therefore, than thus, that whatever right Hunt may have under the Naturalisation Act to become a naturalised citizen of Samoa, there is yet no corresponding law in Samoa authorising the naturalisation of foreigners, and as a question of fact that the so-called personal acceptance by Malietoa I. of Hunt as a Samoan has been undone by Malietoa II., who will have none of him.

On the first ground of this appeal, therefore, my judgment is against the appellant.

But then the appellant contends that if he be not a Samoan, but a British subject, and under the jurisdiction of the High Commissioner's Court, he has been wrongfully convicted by the Deputy Commissioner in Samoa. The charge against the appellant was that he had committed an offence against the Order in Council by residing or being in Samoa in contravention of the order of prohibition issued against him on the 28th of August, 1880, by the High Commissioner. And the Court convicted him, as it had a right to do, of the charge made against him and sentenced him "to three months' imprisonment or until such time, not exceeding three months, as opportunity shall offer for sending him in custody to Levuka under the warrant issued by the High Commissioner."

The appellant contends that his conviction ought not to have been an alternative one, and for this reason it is bad. The conviction might perhaps have been differently expressed if drawn by a magistrate experienced in the technical rules of convictions, although it cannot be fairly described as an alternative punishment. The punishment was to cease on the occurrence of a certain event, and it was in no case to exceed three months. The Deputy Commissioner endeavoured to express what he intended to do - in what may be called his executive capacity - with his legal sentence. He gave a sentence of three months' imprisonment, which was perfectly legal and competent; but in his own mind he had evidently resolved that as the main object after all was to prevent Hunt from troubling the peace of Samoa, to give him the benefit of the milder course if an opportunity occurred to enforce the prohibition itself, in place of continuing the punishment of the appellant for having defied it; and he humanely endeavoured to express this intention in the conviction, which it was difficult to do without giving an opening for such an objection as has been made. In point of fact an opportunity did occur, the appellant was removed from Samoa under the High Commissioner's warrant, and on reaching Levuka was set at liberty. He now appeals - not because he is kept in prison under a conviction which is bad from informality - but, having got out because of the occurrence of the event named in the conviction, he now appeals against that which was in his own favour and by which he has benefited. If I alter the conviction, as I may do under the powers conferred by the Order, so as to strike out the words which the Deputy Commissioner inserted as indicative of his intention but which he need not have inserted, and thus leave the conviction to the bare sentence of three mouths' imprisonment, I would perhaps have to consider whether I ought to give orders for its enforcement.

On the whole, I am not disposed to disturb the conviction as it stands. The expression of the intention of the Deputy Commissioner was so limited that the appellant could not have been detained beyond the three months; and as he has gained the advantage of being sooner restored to liberty because of the words which were inserted, I certainly should not quash the conviction simply on that ground, and do not feel myself called upon to alter it in a way, which would leave it on record as a sentence against the appellant which he has not fulfilled.

Appeal dismissed.