PUBLIC RECORD OFFICE
سلس
c.o.
Reference :-
885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
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er where a British Subject had been taken in arms against Her Majesty could be detained in a district of the Cape Colony where martial law bad claimed and not brought to trial for high treason:
e such person had; and
e such person had not been handed over to the civil authorities for
er in either of the cases mentioned in the last question such person could lease by writ of habeas corpus if so detained?
er such person could, in the absence of statutory provision to that effect, (say) to St. Helena in either of the cases mentioned in the first
er there was any legal objection in either of the above cases, having regard imstances of the case, to a prolonged detention of such person before m to trial?
er there was any objection, on grounds of international law or the usages warfare, to detaining rebels as prisoners of war so long as the war lasts, ts termination bringing them to trial for high treason in the Civi
Civit
lly.
taken the papers into our consideration, and, in obedience to your com-
the honour to
REPORT-
here a British subject has been taken in arms against Her Majesty, and nded over to the civil authorities for trial, he cannot, in our opinion, be ained except under the order of the civil authorities before whom his case The Executive, by handing him over to the civil authorities for trial, to treat him as a prisoner of war, but to have him prosecuted as a traitor, ction cannot, in our judgment, be properly recalled.
where such persqu has not been handed over to the civil authorities for y be properly, detained as a prisoner of war in any place where other war may properly be detained, irrespective of the question whether it is in here martial law has, or has not, been proclaimed. It is true that such been guilty of the crime of high treason, but he has no right to insist on ;ht to trial for treason. His detention merely as a prisoner of war is an of which he cannot complain.
er such person has been handed over to the civil authorities for trial, he out of their hands to be detained as a prisoner of war, we think that a tion would arise as to the legality of his detention, and that this might be plication for a writ of habeas corpus. It might be contended that when led over to the eivil authorities he was discharged from custody as a war, and that he could not properly be retaken as a prisoner of war on the nt of the proceedings before the civil authorities.
question could be successfully raised with reference to the detention as war of such persons in cases where they have not been handed over to the ities for trial.
persons, if detained as prisoners of war, should be treated in the same way r prisoners of war. We are not aware of any difficulty which stands in the removal of prisoners of war to St. Helena for detention, unless there be special in the law of the Cape or of. St. Helena on this point, which we do ikely. No special stututory provision appears to us to be necessary, but, action of this kind is taken, we think that local advice should be obtained ttorney-General at the Cape and at St. Helena. The general principle is own may detain prisoners of war where it thinks fit. Any difficulties that
would be of procedure only.
bink that there are grave objections to a prolonged detention of such ore bringing them to trial. A prisoner of war might be brought to trial after any lapse of time upon the discovery of the fact that he is a British But if it is from the first known that he is a British subject, and with that the Crown detains him as a prisoner of war, we think that this must in taken to be an, election not to treat such person as a traitor. The greater gation of the detention the stronger would be the presumption against the
f subsequent proceedings for treason.
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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.