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
that being done. Nor can part of the deenment-be read and part excluded (Anderson v. Hamilton, 3-B.-&-B.P.-457-Note)+ The objection to the production of a document, if taken prior to the trial, is in England strietly to be taken by the Head of the Department in an affidavit made by him to the effect that the production would be injurious to the public service (Hennessy r. Wright, L.R. 21 Q.B.D., at p. 517). and hie His attendance in Court, if the objection be taken at the trial is probably has been said to be necessary, although cases have occurred in which a high official of the Department concerned, duly commissioned by the Head of the Department to declare that the Head of the Department has considered the documents in question, and is of opinion that their production would be prejudicial to the public service, has appeared in Court, and on his being sworn and making the above declaration the privilege has been conceded. It cannot, however, be definitely assumed that the personal affidavit or attendance of the Head of the Department can be dispensed with.
The instructions given by the Governor of a Colony to his subordinate official haye been held in England to be similarly privileged (Cooker. Maxwell, 2 Starkie, pp. 185, 186), as also the report of a Colonial Governor to the Secretary of State (Anderson v. Hamilton, 2 B. & B. 156 Note). The same rule applies to Colonies in which the Common Law of England is in force, and Mr. Chamberlain is of opinion that it is desirable that this rule should prevail in all the Colonies, it being essential that the disclosure of official documents should in a proper case be prevented.
Upon the question whether by the law of Natal the privilege granted by English law to such documents equally obtains, Mr. Chamberlain desires to express no opinion but he He fully concurs in the observations of the Attorney-General as to the desirability of protecting from disclosure documents the publication or production of which would be prejudicial to the public service, but he does not desire to express any opinion on the question whether the production of the documents in this case would be prejudicial to the public service.
R. E. W.
R. B. F.
26666.
SIR,
No. 201.
(SIERRA LEONE.)
LAW OFFICERS TO COLONIAL OFFICE.
Royal Courts of Justice, November 25, 1898.
WE were honoured with your commands signified in Mr. Wingfield's letter of the 19th instant, stating that he was directed by you to request the favour of our report upon certain questions relating to the power to try in the courts of the colony of Sierra Leone, on the charges of treason and treason-felony, natives of West Africa who have waged war against the Queen during the recent disturbances in the territories adjacent to the colony.
That the so-called Protectorate of Sierra Leone consisted of the territories near or adjacent to the colony in which Her Majesty had exercised jurisdiction. That it might, for the purpose of the present question, be assumed that there were 'no trenties with the native chiefs of those territories other than treaties of amity and friendship under which British subjects had been given by such chiefs the right to trade and travel in their territories, and that the jurisdiction which had been exercised over those territories in Her Majesty's name had been so exercised entirely by usage and sufferance of the chiefs and people themselves.
That Bai Burch, with respect to whom the questions upon which our opinion was requested had arisen, was a chief who had for some years been the commander of troops of war-boys" with whom he had assisted other chiefs in the hinterland" of Sierra Leone on the occasion of their periodical raids on one another.
That his refusal to pay the hut tax and resistance to the British officers charged with its enforcement marked the commencement of the recent disturbances, and that he had for several months been . carrying on warlike operations against the Government of Sierra Leone. That he had recently been captured, and the Governor of Sierra Leone proposed that he should be tried for high treason, or treason-felony, before Mr. Bonnor, the deputy judge, and assessors under the provisions of the Supreme Court (Further Amendment) Ordinance, 1898 (No. 2). That in that connection it should be observed that the scene of the warlike operations in which Bai Burch was engaged, and the place of his capture were within the limits of the Sierra Leone Protectorate.
That by the Supreme Court Ordinance No. 9 of 1881, sections 19 and 21, the Statutes of general application which were in force in England on the 1st January. 1880, were brought into force in the Settlement from the date when that Ordinance came into effect in so far as the local circumstances or the jurisdiction of the Supreme Court might permit and that it was presumed that by those sections the provisions of the Imperial Statute 25 Edward III. St. 5 C. 2. which declared it to be high treason to levy war against the King or to be adherent to the King's enemies, and of the Statute 11 & 12 Vict. Cap. 12 See. 3-which made it treason-felony to levy war against Her Majesty, were brought into force within the colony of Sierra Leone.
That by an Order in Council of the 24th August, 1895, made under the provisions of the Foreign Jurisdiction Act, 1890, and reciting that Her Majesty had acquired jurisdiction within divers foreign countries on the West Coast of Africa near or adjacent to the colony of Sierra Leone, it was provided (Article II.) that it should be lawful for the Legislative Council of the colony to give effect to all such jurisdiction by ordinances and by Article IV, it was provided that the courts of the colony should have in respect of matters within the said territories the same civil and criminal jurisdiction as they from time to time might possess in respect of matters occurring within the colony.
That in exercise of the powers thus conferred the Legislature of Sierra Leone passed the Protectorate Ordinances Nos. 11 and 15 of 1897. That those ordinances gave wide powers of jurisdiction and administration, and that in pursumce of the provisions of section XII. empowering the Supreme Court of the colony to try cases of murder committed by natives on persons not natives, the Deputy-Judge of the Supreme Court
1637—25—199 Wt 21618 D&S 5