2
That the Governor appeared to think that the power conferred on him by the proviso contained in section 14, to issue at any time a special Commission of Oyer and Terminer and Gaol Delivery, was sufficient to warrant the issue of a special Com- mission to any judges whom he might select. But Sir Julian Pauncefote was to observe that the Act provided that the Court of Grand Sessions should be held before the Chief Judge (now called the Chief Justice), and that when the Court sits under a special Commission, the same proceedings shall take place in respect of the summoning of jurors, and all other matters, as at the ordinary sittings of the Court; and he was to request that we would be so good as to take the local Act referred to by the Governor into consideration in advising as to the legality of the special Commission which he proposed to issue to the judges referred to in the previous letter from the Colonial Department of the 29th ultimo.
In obedience to your Lordship's commands we have the honour to
Repor!
That by the operation of the 6 & 7 William IV. c. 17., local Act of Barbados, No. 98, no question can arise now as to the extent of Her Majesty's prerogative right to issue a special Commission for the trial of offenders in cases of great emergency, inasmuch as the Courts established under the statutes in question are invested with exclusive jurisdiction. The question, therefore, resolves itself into the proper con- struction to be given to the 14th section of the local Act 251, and the proviso to that section. Now that section is directed to the regulation of the periods during which, and the intervals at which, the Courts of Grand Sessions of Oyer and Terminer and General Gaol Delivery and General Sessions of the Peace shall be held.
After providing for the holding of such Courts three times in the year at certain stated times, there is a proviso that it shall be lawful for the Governor, under certain conditions, to issue at any time or times, as he may think fit to issue, a Commission for the trial of persons accused. This appears to us to give no authority to constitute a new and different tribunal, but simply to authorise the holding of the ordinary courts at times other than those prescribed by the statute. to advise that the Governor may legally issue such a special Commission as he desires We are, therefore, unable
to issue.
The Right Hon. the Earl of Carnarvon,
&c.
&c.
&c.
We have, &c.,
(Signed)
JOHN HOLKER.
HARDINGE S. GIFFARD.
5667.
No. 93.
(CAPE OF GOOD HOPE.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD,
WE were honoured with your Lordship's commands, signified in Mr. Malcolm's
Temple, 9th May 1876. letter of the 23rd of March last, stating that he was directed by your Lordship to transmit to us the accompanying copies of a correspondence respecting a complaint that one Hampden L. Smithers, a British subject, resident in the Transvaal Republic, had been compelled, in accordance with what was alleged to be the law of that State, to join a
Commando" sent into the country of the Amazwazis, a native tribe, in order to help them against a threatened attack of the Zulus.
66
2. That a "Commando"
in which it was understood that every able-bodied white resident in the republic was compelled to serve when called upon.
was a species of police force organised in military fashion,
""
4
the
3. That the principal object of the "Commando' which might be at all times available for the repression of disturbances among
system was to provide a force savage tribes amongst or near whom the white inhabitants of the republic dwell.
4. That assuming, as stated by Acting President Joubert, that the law of the republie imposes upon all able-bodied residents the duty of compulsory service on a Commando," whether called out against the uncivilised tribes inhabiting and sur- rounding the republic, or for whatever purpose, Mr. Malcolm was to request that we would advise your Lordship whether there was anything contrary to international comity and usage
in the application of such a law to a foreigner, and whether the circumstances of Mr. Smither's case appeared to be such as would justify any quasi- diplomatic intervention by Her Majesty's representative in South Africa on his behalf, and that your Lordship would be obliged by any other observations which might occur to us on the subject generally.
In obedience to your Lordship's commands we have the honour to
Report
That there is nothing contrary to international comity and usage in the application of such a law to a foreigner, and that there is nothing in the circumstances of Mr. Smither's case which would justify any quasi-diplomatic intervention on his behalf' by Her Majesty's representative in South Africa.
The Right Hon. the Earl of Carnarvon,
&c.
&c.
&c.
We have, &c., (Signed)
JOHN HOLKER. HARDINGE S. GIFFARD.
J. PARKER DEANE.
A 19916.-93, 25.-12/84.
PUBLIC RECORD OFFICE
C.O.
Reference :-
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO