3200.
PUBLIC RECORD OFFICE
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C.O.
Reference :-
885
10 PUBLIC RECORD OFFICE, LONDON
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cases of mere transitory occupation, by a mere non-user of the territory for a con- siderable interval of time. The title was, then, originally de jure and de facto valid according to the usage and law of nations applicable to cases of this description. Her Majesty has never abandoned that title, either by any direct act of the State, or by an indirect permission of the exercise of the rights of sovereignty of another State. On the contrary, directly the knowledge of any such attempt on the part of Portugal was made,—and it was made by no other State,-Her Majesty's Government distinctly and positively resisted it, ratifying the aots of force used by the officers of the Crown to remove the Portuguese authorities and subjects from the island. The British inhabi- tants of the island, in 1814 or 1816 (the date seems uncertain), were driven out by an attack from natives of an adjoining island. Neither on that occasion, nor in 1792, did Portugal or any other European Power put forward any title to the island. Indeed, on the latter occasion, the Portuguese Government of Bissagos appear to have aided the British Government of Sierra Leone.
Since that period circumstances have made Her Majesty's Government think it expedient that this possession of the Crown should be more carefully guarded by naval and military force. Some measures for the accomplishment of this object have accord- ingly been taken; and moreover in the exercise of her right of sovereignty, Bulama has been formally attached to Her Majesty's Possession of Sierra Leone by an Order in Council and solemn Proclamation in the year 1860. It is to be observed that if the title of Her Majesty can be impeached at all, or by any counter-claimant, Portugal is certainly not, in my opinion, entitled to be the impugner, or to prefer the adverse claim. That State has, to use the language of civilians, no persona standi in the matter.
The claim of title founded on an averment of discovery in 1752, and subsequent grant originally put forward by that Crown, was destitute of all foundation in fact and law. The alleged discovery was not followed by any occupation; the erection of a wooden pillar alone, or any emblem of the kind, not followed by occupation, con- stitutes, according to the opinion of every jurist of repute, no legal possession. The alleged grant to Portugal was never produced. The letters said to illustrate the transaction did not refer to any grant; and the alleged grantor, the Governor of Sierra Leone, had no power to make the grant.
Probably a sense of the utter insufficiency of these grounds to found any title induced the Portuguese Government tacitly to abandon them, and no proof of title is now produced anterior to the year 1828, and the first real attempt to occupy the island was made in 1830. In September 1831 this forcible occupation was practically resisted by one of Her Majesty's subjects, Captain Goddard, commanding a merchant ship, who was fired upon for not saluting a Portuguese flag on the island. As soon as Her Majesty's Government received this information, measures were taken in various ways and at various times for reinstating Her Majesty's authority in the island, and from that period to the present Her Majesty's Government have never ceased to maintain the right of the British Crown to this territory.
Considerations of policy or expediency are, of course, without the province of my duty but in my opinion international law furnishes no reason why these steps should be retraced, or this possession abandoned.
To the Right Hon. Earl Russell, K.G.
&c.
&c.
&c.
I have, &c.
(Signed)
ROBERT PHILLIMORE.
SIR,
No. 324.
(NATAL.)
QUEEN'S ADVOCATE to COLONIAL OFFICE.
Doctors' Commons, April 3, 1865. I AM honoured with your commands, signified in Sir F. Rogers' letter of the 20th ultimo, stating that, with reference to my report dated the 23rd December 1863,* on the draft of a law for the purpose of legalising and regulating the marriage of certain natives of Natal under the Christian rites, he was directed to transmit to me a copy of a Despatch which was addressed to the Lieutenant-Governor of the Colony on To Lt. Gov. the subject, and a copy of his reply, and to request that I would furnish you, Sir, with Scott, No. my further opinion on the draft law in connexion with the explanations furnished by 1884. the Lieutenant-Governor.
In obedience to your commands I have taken this case again into consideration, and Scott, No. have the honour to
360, 26 Jan.
Lt. Gov.
79, 31 Oct.
1864.
Report
That the Despatch of his Excellency Lieutenant-Governor Scott tends to confirm my opinion that the native community in Natal is not yet in fit condition for the legisla tion which is proposed on this difficult and important subject.
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His Excellency observes that in his capacity of Supreme Chief or Ruler, he "has, by native usage, the power to amend and alter their established laws and practices
by a mere order or decree, promulgated amongst them for their observance, and by
the judicious exercise of this power the most prominent and objectionable customs and usages can be and are gradually moulded and changed to a nearer conformity "with civilised laws and customs." I still venture to think that a further lapse of time, during which this power shall have been so exercised, will render the native population in a fitter state for legislation on this subject than they are at present. The reported case in the Supreme Court at Natal of " Mamcona Ogle v. Representative "of Henry Ogle, deceased," does not throw so much light upon the subject as I had anticipated from his Excellency's former Despatch, but it seems to establish the validity of a native marriage according to the native law, and, moreover, that the Christian marriage of natives would not be invalidated if the bridegroom should omit to pay to the parents of the bride what is called "the Ukulobola.”
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I observe that Mr. Justice Connor asserts that "the contract and fact of the marriage "make the man liable to the relatives of the woman for a payment, the amount of which is regulated by rates, no doubt well known among the natives. In general, the payment precedes, or is contemporaneous with, the marriage, but it is, I think, logically a mistake to say that payment is an essential part of marriage; it is, strictly speaking, more a consequence than a preliminary." And if this be correct, it would tend to remove the principal doubt which his Excellency seems to entertain as to the validity of these marriages, though it must be confessed that their validity would still, according to his Excellency's representation, not rest upon a perfectly sure
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basis.
I confess that it does not seem to me a reason for this legislation that his Excellency would thereby bave the same power of decreeing a divorce between persons married according to the rites of the Christian Church, which he now has when the parties have been married according to the native law. I remain unconvinced of the expediency of the clauses which impose a penalty on clergymen solemnising marriages between the natives who are still under native law, and which declare that such marriages are void. I still think the 17th clause is of an extraordinary character, and inconsistent with the provisions of the 13th clause, for the reasons which I assigned in my former report, and from the general opinion expressed in that report the explanation of his Excellency does not induce me to recede; but I fully admit that I have not that practical acquain- tance with the working of the present system at Natal, which his Excellency seems to think, and perhaps rightly, that a person ought to possess before he can be competent to pass an opinion upon this question.
I have, &c.
(Signed) ROBERT PHILLIMORE.
The Right Hon. Mr. Secretary Cardwell, M.P.
0 16278.-80. 25.-2/86.
• No. 223.