PUBLIC RECORD OFFICE
Reference :--
TLC.O.885
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
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That that Proclamation contained this sentence: —
"in Stellaland while Her Majesty's troops are in occupation, to be applied so far as is “Military rule is hereby declared necessary to supplement the existing inadequate machinery of Government."
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That that Proclamation was withdrawn by another Proclamation of Sir Charles Warren, on the 15th April 1885, of which a copy was enclosed in the accompanying despatch from Sir H. Robinson, No. 200, of 10th June 1885.
That in the interval a body styled the Bestuur was elected, and exercised functions which, for the purposes of this case, might be taken to be a continuance of the sytom of Government which had existed in Stellaland prior to the 15th of February. That it was alleged that the operation of the Order in Council of January 27th had been to deprive of legal validity the Bestuur and all other establishments not created by the High Commissioner under that Order; and that Mr. Wingfield was to invite our attention to paragraphs 3, 4, 5, and 6 of Sir H. Robinson's Despatch of April 29th, 1885, at page 193 of C.-4432. That that was Despatch No. 148 mentioned in the accompanying telegram from Lord Derby of 25th May; and that Mr. Wingfield was also to enclose the telegram in reply of 31st May.
That we were also desired to peruse the accompanying despatch from Sir H. Robinson, No. 191, of 3 June 1885, and the opinion enclosed in it, together with his No. 200, referred to above.
That we were also requested to read the telegram of March 23, No. 1, from Sir H. Robinson to Sir Chas. Warren, at p. 101 of C.-4432, and two telegrams of 10th April and 12th April, between those officers, printed at pp. 146-147 of C.-4432.
That those documents raised important questions as to the effect of the establishment of military rule upon the constitution of Stellaland.
That it was not clear what Sir Charles intended by the use of the term military rule, but that, in fact, he detailed two military officers to supervise the actual civil govern- ment of the country as administered by the local officials; that his second Proclamation of April 15 threw additional light upon the meaning of the former one.
That it was alleged that the election of the present Bestuur during the existence of military rule was of no avail, especially as a large proportion of the electors abstained from voting.
That we were accordingly requested to advise as to what, in our opinion, was the effect upon the constitution of Stellaland of the Proclamation of the 14th of February and of the second Proclamation of the 15th April, as to the effect of the Order in Council in Stellaland, and as to the legal status of the existing Bestuur and any other establishments which were not created under the Order in Council, but which apart from that Order would be properly constituted according to the law of the country.
That Mr. Wingfield was to add that specific questions had not been stated for our opinion, as the documents appeared to show clearly enough the view taken by the advisers of Sir Hercules Robinson; and that you would be glad we would be good
enough to state fully how far we agreed with them.
That Mr. Wingfield was further to inquire what, in our opinion, was the effect of the Order in Council as regarded the territories of the Chiefs Mankoroane and Montsioa, and whether in those territories Her Majesty had acquired, under the treaties with these Chiefs, a general power of legislating by Order in Council for all purposes of Government.
That lastly, whether in the territories of other Chiefs within the Protectorate Her Majesty had power and jurisdiction (a) over Her own subjects; (b) over natives under Her protection; and whether the Order in Council was a proper exercise of that power and jurisdiction.
That our reply was requested as early as might be possible, for in the circumstances of those territories it was desirable that the legal position of affairs should not be left undetermined longer than could be avoided.
In compliance with the request contained in Mr. E. Wingfield's letter we have the
honour to
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The Proclamation of February 14th was an announcement by Sir Charles Warren of his intention to disregard any authority then de facto existing in Stellaland, and to use his military power in a certain way and for certain purposes. It had no legal effect upon the laws and constitution of Stellaland, if any at that time existed.
The Proclamation of April 15th is a mere withdrawal by Sir Charles Warren of his previous announcement, and is equally without operation on the laws and constitution of Stellaland.
The so-called independent government of Stellaland, being formed by a lawless association of freebooters, has, in our opinion, no legal status; its laws and tribunals have no validity whatever as regards the subjects of other civilised powers, and none as regards British subjects, except so far as such validity is given to them by the acts of Her Majesty's Commissioners.
The effect of the duly promulgated Order in Council of 27th January 1885 is to enable the High Commissioner to constitute tribunals in Bechuanaland, having juris- diction over British subjects and protected Natives, but not over the subjects of other civiated states.
The Order in Council over-rides, but does not supersede, Sir Charles Warren's Commission. Subject to the express provisions of that Order Sir Charles Warren.may exercise the powers conferred on him by his commission and instructions.
The Bestuur or any other establishments in Stellaland which Sir Charles Warren has created or sanctioned, so far as they are consistent with the Order in Council, may be regarded as the particular methods by which he has thought fit to exercise his jurisdiction over British subjects and protected Natives in Stellaland. In this sense, but in no other, they have a legal status. The subjects of other civilised states who are in Stellaland cannot be interfered with by the Bestuur, or any tribunals that may be instituted under its authority, without the consent of their own Governments.
The Right Hon. Col. Stanley, M.P.,
&c.
&c.
&c.
We have, &c., (Signed)
R. E. WEBSTER. J. E. GORST.
Report
That, in our opinion, neither the Native African Chiefs nor any of the bodies of freebooters settled in Bechuanaland could, either by treaty or sufferance, confer upon Her Majesty jurisdiction over the subjects of any civilised power other than Great Britain.
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