12534.
No. 174.
(LAGOS.)
LONDON:
TRINTED FOR HER MAJESTY'S STATIONERY OFFICE BY DARLING & SON, LTD.. 1-5. GREAT ST. THOMAS APOSTLE, EC. 1998
GENTLEMEN,
COLONIAL OFFICE to LAW OFFICERS.
Downing Street,
June 8, 1898. I AM directed by Mr. Secretary Chamberlain to ask your opinion upon the question of the position of the troops and civilians accompanying the troops now under the command of Colonel Lugar in the hinterlands of the Colony of Lagos and the Niger Company's Protectorate. These troops have been enlisted partly under the provisions of the Lagos Constabulary Ordinances sent herewith, and partly as Niger Company's forces under the rules and regulations laid down in the Standing Orders sent herewith. It is, however, not considered material to the present question to consider the terms of enlistment of these forces, but these Ordinances and Standing Orders are sent for purposes of reference if necessary.
Colonel Lugard telegraphed from Jebba, on the Niger, on June 2nd as follows:- "Can you inform me whether it has been decided that this force (is) on active service. Information required by telegraph for purposes of discipline and status of civilians, especially native."
The civilians referred to are clerks and others who are necessary for the management of various military and departmental matters connected with the force.
Colonel Lugard's telegram is directed to the question whether, under the provisions of the Army Act, 1881, the force under his command is on "active service." this Act and amending Acts is contained in the accompanying copy of the Manual of A copy of Military Law, which has been brought up to date by the insertion of the various amendments of the Army Act since 1881. "Active Service" is defined by Section 189 as meaning the condition which applies to a person subject to military law when he is attached to or forms part of a force which
is in military occupation of a foreign country, or the condition which arises when under Sub-section (2) of that section the General Officer Commanding the Forces declares that the forces are to be temporarily subject to the Act as if they were on active service. It is desirable, if possible, that the former condition should be held applicable in the present case, because it is quite possible that breaches of discipline may have already been dealt with under the Army Act, notwithstanding the fact that no declaration has yet been made as required by Section 189 (2) of the Army Act.
The question therefore arises whether Colonel Lugard can be regarded as in military occupation of a foreign country. Of the fact of military occupation there can be no doubt, as he has established military posts in various localities in the hinterlands of Lagos and the Niger Coast territories. These countries in occupation have been placed under the protection of the British Crown by various treaties with native chiefs and may be regarded as British Protectorates, but have not been declared to be Protectorates. The question, therefore, is whether these countries can be termed "foreign countries" within the meaning of Section 189 (1) of the Army Act, 1881.
Assuming that this is the case and that these troops are on active service, then under Section 176 (9), (10) of the Act the civilians who accompany them are subject to military law, and under Section 177 the forces raised in Lagos, who are serving under officers of Her Majesty's regular forces, appear to be subject to the provisions of the Army Act, and the forces raised in the Niger Protectorate appear to be similarly subject to military law under Section 176 (3).
The question of the legal position of a Protectorate has not, so far as Mr. Chamberlain is aware, been dealt with in the Courts of Law, except in the summing up of Lord Russell of Killowen, Chief Justice, in the case of Regina v. Jameson and others, which is reported at page 551 of Vol. 12 of the Times Law Reports.
At page 590 of that volume the Chief Justice dealt with the question of Protectorates and invited the jury to find that for the purposes of the Foreign Enlistment Act the parts of South Africa where certain military preparations had taken place were part of Her Majesty's Dominions. But this question would appear to be one of fact, and it
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