6461.
PUBLIC RECORD OFFICE
C.O. 885
Reference :--
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
15 PUBLIC RECORD OFFICE, LONDON
SIR,
No. 21.
(SOUTH AFRICA.)
LAW OFFICERS to COLONIAL OFFICE.
Royal Courts of Justice,
February 24, 1900.
We were honoured with your commands, signified in Mr. Bertram Cox's letter
of the 19th instant, stating that he was directed by you to transmit to us a despatch from H.C.,No.44
the High Commissioner for South Africa regarding an alleged case of trading with the -24 Jun. South African Republic by Mr. F. W. Murray.
That a copy of the High Commissioner's Proclamation forbidding trading with the enemy would be found at page 40 of the Blue Book (Cd. 43) enclosed.
That the Attorney-General of Cape Colony was of opinion that Mr. Murray in instructing a broker at Durban to ship 5,000 packets of sugar to one Michaelson, in Pretoria, was not trading with the enemy, nor attempting to trade, and he proceeded to express the opinion that whether trading with the enemy was criminal depended on the nature of the trade. That although he did not discuss this point exhaustively, Mr. Cox was to observe that he seemed to imply that the sending of some goods to the enemy's country, not being goods which assist the enemy in military operations, such as arms, was no offence.
That you presumed that in this country to supply goods of any description to a country with which the Queen was at war would be adhering to the Queen's enemies within the meaning of the Act 25 Edward III. st. 5, c. 2, but that that Act was not in force in the Cape. That it was believed that there was no definite statutory law in the Cape containing any definition of treason which would be applicable to this case, the only offence declared to be high treason being, it was believed, that of delivering guns and gunpowder, as provided in section 22 of the Ordinance No. 2 of 1853, and the offence must therefore be punishable, if at all, by the Roman Dutch common law. That an account of treason under this law would be found in Van Leeuwen's Commentaries on Roman Dutch Law, translated by Chief Justice Kotze, vol. H., book IV., chapter 33, p. 256, and in Van de Linden's Institutes of Holland, book II., chapter IV., sec. 11, p. 202.
That Mr. Bertram Cox was to request us to take these matters into our consideration and to advise you,
offerice-
1. Whether in the circumstances két forth Mr. Murray was guilty of any (a.) By English law;
(b) By Cape law.
2. Whether the opinion of Mr. Solomon was correct in point of law, and if not, in what respects it is erroneous.
3. Generally.
We have taken the matter into our consideration, and in obedience to your commands,
have the honour to
Report
That in our opinion Mr. Murray would be guilty of a misdemeanour by English law. Mere trading with the enemy does not amount to high treason within the Statute of Edward III. To constitute the offence of high treason there must be a case of adhering to the Queen's enemies in the sense of supporting them in hostilities against the Queen. Trade in innocent articles with a private individual of the enemy State is not high treason.
But trade of any kind with a person in the enemy State is a misdemeanour at Common law (2 Roll. Abr., 173, viz., under head "Prerogative le Roy." (L.) Guerre 3, per Lord Mansfield, Gist v. Mason, 1 T. R., 89, per Lord Stowell in The Hoop, 1 C. Rob. 216-7; Hinkle r. L. Exch. Afr. Co., as cited by Sir John Nicholl, arguendo, 8 T. R., p. 556; Potts e. Bell, 8 T. R., 543.
An attempt to commit a misdemeanour is in itself a misdemeanour by the law of
3046-25-31900 W 439 D & S