PUBLIC RECORD OFFICE
Reference :-
C.O. 885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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5. If the petition is in proper form, and discloses a proper case, the fiat cannot bo properly refused,
6. The fiat may be granted even though the Governor of the Colony, acting upon the advice of his responsible Ministers, may have refused to refer to the Supreme Court such petition for redress. The prerogative in question should be exerted in any case in which it appears necessary to prevent a denial of justice.
7. The Secretary of State for the Colonies has no discretionary power to withhold a petition from Her Majesty, or to delay it longer than is necessary for obtaining advice upon it.
8. The Colonial Government has not any discretionary power to prevent the petition from reaching the Secretary of State, or to hinder the petitioner from acting upon the petition when returned with Her Majesty's fiat.
9. The question of the applicability of the arbitration clause to the matters raised in the Western Australian Land Company's petition is one for decision by the Supreme Court in the proceedings upon the petition.
We do not at all lay down that the existence of an arbitration clause which clearly barred any right of action might not be a ground for refusing the fiat. not such a case. Upon this point we refer to the Attorney-General's Report of the But this is 22nd June 1896.*
The Right Hon. Joseph Chamberlain, M.P.,
&c.
&c.
&c.
• No. 110.
We have, &c.
RICHARD E. WEBSTER. ROBERT B. FINLAY.
7062.
No. 135.
(SOUTH AFRICA.)
LAW OFFICERS to COLONIAL OFFICE.
SIR,
Royal Courts of Justice, April 2, 1897. We were honoured with your commands, signified in Mr. Edward Wingfield's letter of the 24th ultimo, stating that he was directed to transmit to us copies of the following documents :-
A. Judgment of the Chief Justice of the South African Republic in the case of Brown versus Dr. Leyds, as reported in the "Transvaal Advertiser' of the 25th January last.
B. Confidential telegrams and a secret Despatch from the High Commissioner for South Africa, as noted in the margin.
C. Proceedings in the High Court of the South African Republic, as reported in the Johannesburg "Star" of the 20th February last, on the citation of the editor of the "Volksstem for contempt of Court.
D. Conventions of 1881 and 1884.
2061-27 Jan. 1887.
3871.-30 Feb. 4261.-25 Feb. 4301.-26 Feb.
573-7 Feb. 6-3 Mar.
4396.-27 Feb.
4833,--5 Mar. 221 8.-16 Feb, 415.-7 Mar. 4065.-8 Mar. 4066---8 Mar.
8178-11 Mar.
That it would be seen that there had been a serious conflict between the High Court 10-10 Mar. and the Executive and Legislature of the South African Republic, in consequence of the Court having asserted its power to inquire and determine whether a law passed by the Volksraad was invalid as being in conflict with the provisions of the Grondwet, and baring denied the right claimed by the Volksraad to pass resolutions having the force
of law.
That in consequence of the judgment of the Court in the Brown case, the Volksraad had passed a law empowering the President of the Republic to administer certain interrogatories to the Judges, and, in the event of their answers not being satisfactory, to remove them from office. That the Judges had apparently submitted to the action of the Government on certain conditions as to the amendment of the Grondwet,
That it would also be seen, by reference to the High Commissioner's telegram of the 8th March, that the Chief Justice was credibly reported to hold that the action of the Government in relation to the Judges of the High Court was an infringement of the Conventions of 1881 and 1884.
That Mr. Wingfield was to point out that the form of both those Instruments was peculiar, and different to that of a treaty or convention in the ordinary sense of the word, the earlier Instrument being in the form of a grant in Her Majesty's name of self-government to the Transvaal territory on certain conditions stated in the numbered Articles following, and agreed to by the Transvaal representatives in a Supplementary Article; while the later Instrument was in the form of a direction and declaration by Her Majesty that the articles therein set forth, signed by both parties, should be substituted for the articles embodied in the Convention of 1881.
That so far as you were aware, no question had ever been raised that the numbered Articles of the Convention of 1881 were superseded by those of the Convention of 1854; but that Mr. Wingfield was to draw our attention to the observations of the Chief Justice of the South African Republic in the course of the case against the editor of the Volksstem," during which he was reported to have declared that the High Court of the Republic owed its existence in the first place to an Order of Her Majesty in Council during the British occupation of the Transvaal; (that there were, indeed, two Orders, copies of which were enclosed;) in the second place, to Article III. of the Convention of 1881 which preserved the validity, until altered by a competent authority, of existing laws, and, in the third place, to the ratification of the Convention by the Volksraad.
That you would be glad to be favoured with our opinion:-
1. Whether Her Majesty's Government could, in the event of any interference with the constitution of the High Court, except by competent authority, found any remonstrance to the Government of the South African Republic upon the third Article of the Convention of 1881, or upon any other Article of that Convention-for instance, Article XXVII.
2. Whether, generally, there were any grounds on which the contention ascribed to the Chief Justice that the action of the Government was an infringement of the Conventions of 1881 and 1884 could properly be maintained?
3. Whether, in making any representation to the Government of the South African Republic based on Article XIV. of the Convention of 1884, Her Majesty's Government
O 95386.-13. 25.-4/97.
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