PUBLIC RECORD OFFICE
C.O. 885
Reference :-
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
2
1. Whether where a British subject had been taken in arms against Her Majesty such person could be detained in a district of the Cape Colony where martial law bad not been proclaimed and not brought to trial for high treason:
(a.) Where such person had; and
(b.) Where such person had not been handed over to the civil authorities for trial.
2. Whether in either of the cases mentioned in the last question such person could obtain his release by writ of habens corpus if so detained?
3. Whether such person could, in the absence of statutory provision to that effect, be deported (say) to St. Helena in either of the cases mentioned in the first question?
4. Whether there was any legal objection in either of the above cases, having regard to the circumstances of the case, to a prolonged detention of such person before bringing them to trial?
}
5. Whether there was any objection, on grounds of international law or the usages of civilized warfare, to detaining rebels as prisoners of war so long as the war lasts, and after its termination bringing them to trial for high treason in the Civil Courts ?
6. Generally.
We have taken the papers into our consideration, and, in obedience to your com- mands, have the honour to
REPORT-
- 1. That where a British subject has been taken in arms against Her Majesty, and has been handed over to the civil authorities for trial, he cannot, in our opinion, be properly detained except under the order of the civil authorities before whom his case is pending. The Executive, by handing him over to the civil authorities for trial, elected not to treat him as a prisoner of war, but to have him prosecuted as a traitor, and that election cannot, in our judgment, be properly recalled.
In cases where such person has not been handed over to the civil authorities for trial, he may be properly detained as a prisoner of war in any place where other prisoners of war may properly be detained, irrespective of the question whether it is in a district where martial law has, or has not, been proclaimed. It is true that such person has been guilty of the crime of high treason, but he has no right to insist on being brought to trial for treason. His detention merely as a prisoner of war is an indulgence of which he cannot complain.
2. If, after such person has been handed over to the civil authorities for trial, he were taken out of their hands to be detained as a prisoner of war, we think that a serious question would arise as to the legality of his detention, and that this might be raised by application for a writ of habeas corpus. It might be contended that when he was handed over to the civil authorities he was discharged from custody as a prisoner of war, and that he could not properly be retaken as a prisoner of war on the abandonment of the proceedings before the civil authorities.
No such question could be successfully raised with reference to the detention as prisoners of war of such persons in cases where they have not been handed over to the civil authorities for trial.
3. Such persons, if detained as prisoners of war, should be treated in the same way as the other prisoners of war. We are not aware of any difficulty which stands in the way of the removal of prisoners of war to St. Helena for detention, unless there be something special in the law of the Cape or of St. Helena on this point, which we do not think likely. No special stututory provision appears to us to be necessary, but, before any action of this kind is taken, we think that local advice should be obtained from the Attorney-General at the Cape and at St. Helena. The general principle is that the Crown inny detain prisoners of war where it thinks fit. Any difficulties that might arise would be of procedure only.
We think that there are grave objections to a prolonged detention of such persons before bringing them to trial. A prisoner of war might be brought to trial for treason after any lapse of time upon the discovery of the fact that he is a British subject. But if it is. from the first known that he is a British subject, and with that knowledge the Crown detains him as a prisoner of war, we think that this must in fairness be taken to be an election not to treat such person as a traitor. The greater the prolongation of the detention the stronger would be the presumption against the propriety of subsequent proceedings for treason.
3
5. The answer to this question is governed by the same considerations as those to which we have adverted in our answer to question 4. We think that when the fact that the person is a British subject comes to the knowledge of the authorities they ought to decide whether they will treat him as a prisoner of war or as a rebel, and act accordingly. To detain him as a prisoner of war while the war lasts, and then to bring him to trial for high treason, would be to punish the man twice for the same offence. We may add, however, that we think that probably there would be great difficulty in obtaining a conviction under circumstances of so much hardship.
We have, &c.
6. We have nothing to add by way of general advice. -
RICHARD E. WEBSTER. ROBERT B. FINLAY.