PUBLIC RECORD OFFICE
CO.
Reference :-
885
12 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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good defence to the action. We think that the mere carriage in the "Florence," when she pursued her voyage, of the ammunition which was never landed, was neither an exportation" nor a "sending by any person from a port or place in the island" within the meaning of the 25 Vict. c. 23. As regards the action of Gordon and Pulido v. Musgrave, which relates to the detention of that portion of the ammunition which had been landed, the case is open to more doubt; but we think, upon the whole, that the defendant would not succeed in this action either. Having regard to the circumstances that the "Florence came into port in distress, and that the materials in question were merely landed temporarily whilst she was being repaired, and then reshipped that she might proceed on her voyage, it appears to us that the case is not within the terms of the statute.
2. It might be advantageous to amend the statute by making the terms correspond precisely with those of the English statutes dealing with the same subject. But it would not, we think, be worth while to legislate with reference to such exceptional circumstances as those which have given rise to the present question.
3. The existing proclamation is, no doubt, defective in the respect pointed out by the Attorney-General of Jamaica inasmuch as its prohibition extends beyond what the statute warrants. We think it would probably be construed in connection with the statute, and be held a valid prohibition of sending ammunition to a place beyond the limits of the island. But it would be desirable to issue a new proclamation, following exactly the authority of the statute. If, as we understand, the practice has always been that proclamations which the Governor is empowered to issue are issued by him in the name of Her Majesty, we see no reason for departing from this practice.
We have, &c.,
The Right Hon. the Earl of Kimberley,
&c.
&c.
&c.
(Signed)
HENRY JAMES. FARRER HERSCHELL.
9952.
No. 229.
(TRANSVAAL.)
LAW OFFICERS to COLONIAL OFFICE.
MY LORD,
We are honoured with your Lordship's commands, signified in Mr. Bramston's
Temple, 3rd July 1880. letter of the 10th ultimo, stating that be was directed by your Lordship to request that we would take into consideration the accompanying law which has been passed No. 3 of by the Legislature of the Transvaal to indemnify certain persons in regard to acts 1880. done during the recent military operations, and that we would favour your Lordship with our opinion whether there is any reason why this law should not receive Her Majesty's sanction, and with any observations that might occur to us upon it.
2. That he was also to transmit a copy of the Letters Patent creating the Legis- lative Assembly of the Transvaal, and conferring legislative powers upon that body.
3. That he was also to transmit to us a copy of the recent Indemnity Laws of the Cape (23 of 1878), Griqua Land West (2 of 1879), and Natal (14 of 1873), which are referred to by the Attorney-General of the Transvaal. Also of the Jamaica Law
(I of 1865) referred to. This last was referred by Mr. Secretary Cardwell to the Law Officers of that day on the 28th December 1865. That the action of the Government upon that law would be found stated in the Secretary of State's despatch to Sir H. Storks of 18th June 1866 at page
4. That it was not understood that this Ordinance was meant to cover any specific
of the accompanying Blue Book. acts that went beyond the law so much as to indemnify the authorities generally for any acts that might be held to be illegal if called in question. And he was also to state that there had been no military operations in or from the Transvaal except against the Zulus, who would appear to be the "enemies" beyond the borders, and against Sekukuni and his natives within the province; and as these latter resisted Her Majesty's forces and denied Her Majesty's authority from strongholds situated within the Transvaal, of which they were inhabitants, it is presumed that the word "rebels is intended to refer only to them, and that, having regard to the preamble and to the Attorney-General's report, the Ordinance might be taken to have no further political importance.
In obedience to your Lordship's commands we have the honour to
Report
"
That we think that the law may receive Her Majesty's sanction subject to the following modifications: It appears to us that the words in clause 1 "and for the preservation of the public peace throughout the province operation, and might be held to cover acts in no way connected with military opera- are too extensive in their tions, and which are not properly within the scope of an Act of Indemnity. We also think that the last proviso in s. 1, "that every such act, matter, or thing shall be presumed to have been done bona fide," would create an absolute presumption which could not be rebutted. We therefore suggest that the words found in the Cape
of Good Hope Act and other precedents, viz., "until the contrary shall be made to appear by the party complaining" should be added at the end of the clause.
HENRY JAMES. FARRER HERSCHELL,
We have, &c., (Signed)
The Right Hon. the Earl of Kimberley,
&c.
&c.
&c.
▲ 19916.—914. 25.-- 19j84.