2
punishment only by reason of a fictitious sentence for some imaginary crime or offence committed by him in Cape Colony, such crime and sentence being the creation of the Cape Legislature.
When judicial proceedings have been so irregular as they have been in the present case, it is difficult to advise with certainty as to the best mode of remedying the injustice and at the same time of securing the object for which the sentence was pronounced, but upon the whole we are of opinion that the least objectionable course to adopt under existing circumstances is that secondly mentioned in Mr. Malcolm's letter, namely the granting of a pardon to the prisoner, conditional upon his not going beyond the boundaries of the Colony of the Cape of Good Hope.
It appears to us that inasmuch as the sentence itself was irregular, and one which it was not within the power of a Natal Court to pronounce, it is not now competent to Her Majesty in exercise of Her prerogative to direct that it should be commuted into a sentence of banishment or imprisonment within the Colony of the Cape of Good Hope. We also think that the passing by the Cape Legislature of the Act mentioned in Mr. Malcolm's letter was not sufficient to confer authority upon the Lieutenant-Governor of Natal to appoint the Colony of the Cape as the place of the prisoner's banishment under the sentence.
Should a pardon be granted to Langalibalele upon condition of his not leaving the Cape Colony, we think it very doubtful whether such a condition could be enforced.
In case Langalibalele escaped to some place out of Her Majesty's dominions, we are clearly of opinion that his extradition could not be demanded; and if he escaped to Natal or any other part of Her Majesty's dominions out of the United Kingdom, he could only be apprehended if his escape under the circumstances amounted, by the law of Cape Colony, and of the place in which he took refuge, to a felony, see 6th and 7th Victoria, chapter 34, sections 2 and 10. We may add that, according to the law of this country, the escape of a prisoner pardoned on condition of his not leaving a parti- cular territory would not amount to a felonious prison breach.
The Right Hon. the Earl of Carnarvon,
&c.
&c.
&c.
We have, &c.,
(Signed) RICHARD BAGGALLAY.
JOHN HOLKER.
10765/1885.
MY LORD,
No. 44A.
(BUENOS AYRES.)
LAW OFFICERS to FOREIGN OFFICE.
We are honoured with your Lordship's commands, signified in Lord Tenterden's
Lincoln's Inn, December 14, 1874. letter of the 21st November ultimo, stating that he was directed by your Lordship to transmit to us a correspondence, as marked in the margin, from Her Majesty's Minister at Buenos Ayres, having reference to the interference of the Tocal courts in regard to a dispute as to the wages due to a seaman of a French ship by the master. A previous Despatch from Her Majesty's Consul at Rosario, referred to in the course of the correspondence, was likewise enclosed; and Lord Tenterden was to request that we would take the matter into our consideration, and favour your Lordship with our opinion as to the instructions which should be sent to Mr. West, in the event of interference, such as that exercised in the case of the French ship being claimed by the local courts over similar disputes affecting the discipline of British ships.
In obedience to your Lordship's commands we have taken these papers into con- sideration, and have the honour to
Report
That in our opinion the courts of the country in which the ship may be have, in the absence of any treaty or convention to the contrary, a jurisdiction over questions of wages on board such ships.
It has been the practice in England, where a suit for wages has been brought in the Admiralty Court by a foreign seaman against a foreign ship, to direct that notice be given to the consul; but this has been a matter of courtesy, and not required to > give the court jurisdiction.
The law applicable to the case would, as a general rule, be the law of the country to which the ship belonged, and under which the contract for wages was made.
Apart from treaty or convention, we believe that a consul has no claim to a juris. diction over the subjects of the country whose officer he is in disputes relating to wages or affecting the ship's discipline; and that the only instructions which can properly be sent to Mr. West are that, in the event of the local courts claiming to interfere in disputes affecting the discipline of British ships, the exercise of that juris- diction should be carefully watched.
We have, &c.
(Signed)
RICHARD BAGGALLAY. JOHN HOLKER. J. PARKER DEANE.
0 16276.--378. 25.-8,85.
PUBLIC RECORD OFFICE
Reference :-
CO. 885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
}
}
14,612.