PUBLIC RECORD OFFICE
c.o.
Reference :-
885
10 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
2
In obedience to your Grace's commands we have taken these papers into considera- tion, and have the honour to
Report
That we have read and carefully considered the Despatch of Sir P. Wodehouse, Governor of the Cape of Good Hope, of the 18th February last, together with the accompanying memorandum of the Acting Attorney-General of the Cape, on the subject of the commencement of the operation of the Letters Patent of the 13th March 1862, and we find therein no grounds for altering or modifying the opinion The language expressed in our Report to your Grace of the 24th December last. of the Letters Patent is very plain. "It hath seemed good to us to annex," &c. and, "the territories, &c. shall be and they are hereby annexed to our said territories of "British Kaffraria." According to well-known rules of English construction in the absence of language showing a contrary intent, enactments speak from the date of the Royal Assent, in other words, from the time of their coming into existence as Acts of Parliament. Frequently, indeed, the operation is postponed in express terms, and the Annual Mutiny Acts are an example of the date of operation being made to depend upon the nearness or remoteness of place. These, however, are but in the nature of exceptions tending to prove the rule, a rule which it appears to us applies a fortiori to Letters Patent, and especially to Letters Patent conceived in the terms which we find used in the Letters Patent now in question. We may add that the 9 & 10 Vict. c. 91., both in the preamble and in the enactments, tend very strongly to confirm the views which we have expressed as to the commencement of the opera- tion of Letters Patent, drawn up in the usual form. We cannot concur in the opinions expressed by Sir P. Wodehouse in the above Despatch with reference to the powers possessed by him under his commission as Her Majesty's "High Commissioner for the "settling and adjustment of the affairs of the territories adjacent or contiguous to "the eastern frontier of the Cape of Good Hope." We do not think that Her Majesty herself possessed such power and jurisdiction as the Governor supposes were communicated to him under his commission; and it appears to us, further, that the Commission could not, regard being had to its terms, have possibly conferred on him the very extensive authority with which he supposes it to have clothed him, authority so much wider than that which is conferred on the Governor of the Cape by express enactment of the 6 & 7 Will. 4. c. 57. Whatever the powers really intended to be given to the Commissioner may be (which we should have supposed would have received some practical definition from instructions or usage) they cannot, in our opinion, include powers of founding and enforcing legal jurisdiction, either criminal or civil beyond the limits of British territory.
We think that legislation on the subject is desirable, and we see no objection to the Draft Bill (as slightly altered by us) being proposed to Parliament.
We have, &c. (Signed) W. ATHERTON.
ROUNDELL PALMER.
His Grace the Duke of Newcastle, K.G.,
&c.
&c.
&c.
6530.
No. 193.
(BERMUDA.)
LAW OFFICERS to FOREIGN OFFICE.
MY LORD,
Temple, July 1, 1863. We are honoured with your Lordship's commands, signified in Mr. Hammond's letter of the 12th ultimo, stating that with reference to our reports of the 24th April and the 12th of May respecting the disposal of the prisoner charged with the murder of the senior officer of the Confederate steamer "Sumter," he was directed by your Lordship to transmit to us, together with the previous papers, a Despatch from Her Majesty's Minister at Washington, reporting that he had been informed by Mr. Seward that it was impossible for the Government of the United States to give its consent to the prisoner being passed on board one of Her Majesty's ships of war through the blockading squadron to a Confederate port, for the purpose of being delivered up to the Confederate authorities, and Mr. Hammond was to request that we would again take this case into consideration, and report to your Lordship our opinion as to how the prisoner should now be disposed of.
In obedience to your Lordship's commands we have again taken this case into con- sideration, and have the honour to
Report
That as in this case leave has been sought by Her Majesty's Government to take the prisoner within the line of blockade to a Confederate port, and that leave has been refused by the belligerent Government which has instituted the blockade, and as it does not appear probable that Her Majesty's ship which has charge of the prisoner can be at all assured of meeting with any ship of war belonging to the Confederate States on board of which the prisoner might be placed, we are obliged, however reluctantly, to advise your Lordship that the prisoner being a person over whom no British court has jurisdiction ought not to be detained in custody by any British authority longer than may be necessary for the purpose of disposing of him on shore.
We have, &c. (Signed)
The Earl Russell,
&c. &c.
16278.---59. 25,--2/86.
• No. 180.
W. ATHERTON. ROUNDELL PALMER. ROBERT PHILLIMORE.
៥.
A