PUBLIC RECORD OFFICE
C.O.
Reference :-
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
That you would be glad if we would take these papers into our consideration, and favour you as soon as possible with our opinion upon the questions submitted to us in the letter from the Colonial Department of the 27th March last.
In another letter from Mr. Herbert, dated the 8th of July instant, he was directed by you to acquaint us that you would be glad to receive as soon as possible an answer to the question submitted for our opinion in the letters from the Colonial Department of the 27th of March and 22nd of June last, arising out of the late crisis in the Colony of Victoria.
That you were desirous to close the whole correspondence with the Governor of Victoria on that subject without delay, in order to be able to present to Parliament the papers which were promised some time back.
In obedience to your commands we have the honour to
Report
That in our opinion the views entertained by the Ministry and by the Attorney. General of the Colony of Victoria, as stated in the papers submitted to us, are not entirely correct. We agree that the moneys necessary for defraying the costs, charges, and expenses mentioned in section 45 of 18 & 19 Vict. c. 55. are legally available for and applicable to "the purposes mentioned in that section," because they are in fact specifically appropriated by the statute in question. With respect, however, to the question whether when the committee of supply has voted money for other purposes than those mentioned in the 45th section of the Statute referred to, and such vote has been duly reported to the Legislative Assembly, the amount voted becomes, without more, legally available, &c.," we are of opinion that it does not. until it has been appropriated by an Act of Victoria Legislature.
The Right Hon.
Sir Michael Hicks-Beach, Bart.,
&c.
&c.
&c.
We have, &c., (Signed)
It is not available
JOHN HOLKER. HARDINGE S. GIFFARD.
9272.
SIR,
No. 175.
(CAPE OF GOOD HOPE.)
LAW OFFICERS to COLONIAL OFFICE.
Temple, 23rd July 1878.
WE were honoured with your commands signified in Mr. Malcolm's letter of the 15th May last, stating that he was directed by you to transmit to us, for our consideration and advice, the accompanying copies of four Despatches from Sir Bartle Frere respecting the proclamation of martial law at the Cape of Good Hope.
2. That the war which had been in progress for some months past at the Cape of Good Hope was being waged against Her Majesty partly by Kaffir living beyond the limits of British territory, and therefore not strictly British subjects, though hitherto having acknowledged the political supremacy of Her Majesty, and partly by Kaffire residing in the Eastern provinces of the Cape Colony, who were British subjects, although permitted to continue under their original tribal habits and laws.
3. That in Sir Bartle Frere's Despatch of the 1st of January, which formed the first enclosure to the case, we would find it stated that Kein, a leading Chief of the Galekas, a tribe living beyond Her Majesty's jurisdiction, appeared in the "Gaika location,' which was in British territory, and incited various Islambi, Gaikas, and others, presum- ably British subjects, to join him in armed acts of violence, which appeared to have consisted in burning several farms and shops, committing highway robbery by armed bands, attempting to stop Her Majesty's post, and attacking Her Majesty's police and military forces while escorting stores, which attacks involved several hours of determined fighting, in which many policemen and soldiers were killed. That we would perceive that the Governor was advised that the only law applicable to the case was an Ordinance, No. 2 of 1837, enabling the Executive to disarm foreigners entering the Colony; "so "that Gaikas, Islambis, and other natives of the Colony might lawfully resist dis- armament, even when intercepted under circumstances which left no doubt of their intention to take part in the armed operations of foreign invaders against the forces of Her Majesty." That a copy of that Ordinance was enclosed.
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4. That it was in view of this supposed state of the law that the Governor, with the advice of his Ministers, proclaimed martial law, a measure not authorised by any local enactment.
5. That the proclamation of martial law would be found amongst the enclosures to Sir Bartle Frere's Confidential Despatch of the 1st of January, and enclosed in his Despatch of the 14th January would be found a notice issued by the Governor appoint- ing certain civilian officials and gentlemen to administer justice in the districts proclaimed, and setting forth a copy of the instructions issued to them, in which they were invested "with all the powers of a Circuit Court, subject to the confirmation by Government of all sentences exceeding one year's imprisonment," and in which in regard to Gaikas and other subjects of Her Majesty taken in arms they were authorised,→→ upon being satisfied of their guilt, to sentence them " to imprisonment with hard labour or transportation to such place as the Governor may direct, to be kept in confinement at hard labour for a term of years."
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6. That it would be observed that the officers named were civilians, but the instruc-
tions to them were to endeavour to obtain the assistance as assessor of some of the senior officers of the force to which you are attached, or of other respectable persons."
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7. That in connection with those instructions you thought it might possibly be of assistance to us to peruse the enclosed copy of a Despatch addressed on the 26th of January 1867, by the Earl of Carnarvon, then Secretary of State for the Colonies, to the Governors of Her Majesty's Colonial possessions, enclosing a set of regulations to be observed upon the proclamation of martial law.
8. That the last Despatch of the three submitted to us was one of the 28th February, in which Sir Bartlo Frere enclosed copies of a correspondence in which he himself, together with the late and the present Attorney-General of the Colony, had taken part, respecting the proper mode of administering martial law.
▲ 12916.-170. 25.-12 84.