PUBLIC RECORD OFFICE
Reference :-
C.O.885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
2
A question of law will arise on the point that to constitute an offence under section 11 of the Statute the expedition must be prepared or fitted out within the limits of Her Majesty's dominions. In order, therefore, to establish that the offence has been committed, it is necessary to prove that the expedition in question was so prepared and fitted out. We gather that a considerable. portion of the expedition started from Mafeking, a place which, having been originally within the protected territory of British Bechuanaland, became, by virtue of the Act of the Cape Colony, No. 41 of 1895, and the Orders in Council of the 3rd October 1895, part of the Cape Colony.
Assuming, therefore, that it be established that there was preparation or equipment of a substantial part of the force at Mafeking, we think it may fairly be contended that, under Section 11, persons joining with and taking part in the expedition after it had left British territory can be convicted of an offence. It will no doubt be contended on the part of the persons charged that if they took no part in the expedition within British dominions they are not liable; in our opinion, this view is questionable, and, in any case, the fact that Dr. Jameson and his coadjutors joined within the Transvaal the force which left Mafeking tends to show that they had been acting in concert with those who prepared the expedition at Mafeking, and that, though not within Cape Colony themselves, they would be guilty of the offence within the Colony under both section 11 and section 12 by their agents.
It may further have to be considered whether the Foreign Enlistment Act applies at Pitsaui Pitlugo, and any other place at which any substantial part of the expedition was prepared or from which it set out. The question will doubtless be raised whether Pitsani Pitlugo and the other points outside of British Bechuanaland at which the expedition was prepared are within Her Majesty's dominions within the meaning of section 11 of the Foreign Enlistment Act. The question is one of considerable difficulty, especially as the Act creates a criminal offence, but, having regard to the very extensive powers conferred on the High Commissioner and the Chartered Company, the constitution of Courts within the territory for the trial of all persons, &c., it seems to us that it may fairly be contended that Pitsani Pitlugo, and these other places, are for the purposes of section 11 within Her Majesty's dominions. Pitsani Pitlugo, the cession by Montsioa may further be referred to in support of this As regards
view.
A further question may be raised as to the necessity of proclamation under section 3 of the Foreign Eulistment Act. The Foreign Enlistment Act has not, we understand, been proclaimed in the territory of the Chartered Company, or in any of the territories outside the Cape Colony. The question will therefore depend upon the meaning and effect of the words, "the law of the Cape Colony shall apply," in the Orders in Council. Upon the whole, we think that it ought to be held that the Foreign Enlist- ment Act is in force in those territories and places, but the question cannot be regarded as absolutely free fro:n doubt.
We think it important that warrants should be prepared, so that, if necessary, pro- ceedings may be taken as soon as the persons to be tried arrive in England. Something will, of course, depend upon the terms of the undertaking which was entered into by them when they were surrendered, but it will obviously be desirable to be prepared in the event of any question being raised as to their rights when they arrive in the United Kingdom.
Royal Courts of Justice, January 24, 1896.
RICHARD E. WEBSTER.
ROBERT B. FINLAY.
HENRY SUTTON.
Gov. No. 9, 1895.
Gor. No. 47, 1895.
Act. No. 7 of 1867.
2121,
SIR,
No. 101.
(WESTERN AUSTRALIA.)
LAW OFFICERS to COLONIAL OFFICE.
Royal Courts of Justice, January 27, 1896.
We were honoured with your commands, signified in Mr. Bramston's letter of the 16th instant, stating that he was directed by you to transmit to us the accom- panying Despatches from the Governor of Western Australia, together with a petition from Mr. William Wilkinson.
That it would be seen that the Governor in Council, under the provisions of the Colonial Act, No. 7 of 1867, had refused to refer the petition of Mr. Wilkinson to the Supreme Court, and that he now appealed to Her Majesty.
That the questions for our consideration appeared to be-
1. Whether Mr. Wilkinson's petition was in proper form, and raised a question proper for decision on a petition of right.
2. Whether, having regard to the prayer of the petition, it would be proper
for
you
to advise Her Majesty to grant Her fiat that right be done in the Supreme Court of the Colony.
That Mr. Bramston was to enclose a copy of a Report by the late Law Officers dated 14th February 1894* upon a Petition of Right from South Australia, and to request that we would favour you with our advice upon the present case.
We have taken the matter into our consideration, and, in obedience to your commands, have the honour to
Report
That in our opinion it would be proper for you to advise Her Majesty to grant Her fiat that right be done in the Supreme Court of the Colony. The fiat should run "let right be done in the Supreme Court of Western Australia.'
There appears to be no doubt that Mr. Wilkinson has suffered from a substantial grievance. The form of his petition is irregular, and, in our opinion, he will probably have very great difficulty in establishing any liability under the Petition of Right, as in order to do so he would apparently have to show that a valid contract to make the road was entered into on behalf of the Government by someone having authority to bind them. But all such questions, whether of law or of fact, should, we think, be tried in Court, and not decided in a summary way by refusing leave to have the question tried.
We have, &c.
The Right Hon. Joseph Chamberlain, M.P., &c. &c. &c.
RICHARD E. WEBSTER. ROBERT B. FINLAY,
• 90336.-10. 25.-2/06.
• No. 52,