6683
R
No. 23.
(SOUTH AFRICA.)
PUBLIC
RECORD OFFICE
Reference:
C.O. 885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
་
SIR,
LAW OFFICERS to COLONIAL OFFICE.
Royal Courts of Justice,
February 26th, 1900.. We were honoured with your commands signited in Mr. H. Bertram Cox's letter of this date stating that, with reference to our Reports of the 35th January and the 6th February last relating to questions affecting the treatment and disposal of subjects of Her Majesty who had taken up arms against Her Majesty, he was directed by you to transmit to us a copy of a telegram dated the 24th February, from Sir A. Milner, which put forward proposals as to the conditions upon which such persons should be allowed to surrender and lay down their arms.
That it would be observed that Sir A. Milner proposed that rebels who laid down their arms should be allowed to enter into recognizances to come up for trial when called upon, and that at some future time they should, if it were deemed expedient to try them, or any of them, be brought to trial for the acts of rebellion committed by them.
That as a matter of policy, you were disposed to think that some action of the nature suggested by Sir A. Milner was expedient, and that Mr. Bertram Cox was to request us to take those matters into our consideration and to report-
(1) Whether there was any legal objection to binding over rebels to appear for trial,
and afterwards prosecuting them either before or after the termination of the war,
(a) If such rebels had been detained as prisoners of war;
(b) If such rebels had been detained in civil custody;
(c) If such rebels had not been detained, but had ceased to take part in the war, had returned to their homes.
and
(2) Whether there was any legal objection to permitting rebels to return to their farms without entering into recognizances, but on the understanding that they would be liable to be called upon to appear for trial and subsequently prosecuting them either before or after the termination of the war,
(a) If such rebels had been detained as prisoners of war;
(b) If such rebels had been detained in civil custody;
(If such rebels had not been detained either as prisoners of war or in civil custody, but had ceased to take part in the war, and had returned to their homes.
(3) Generally-
We have taken the matters into our consideration, and, in obedience to your commands, have the honour to
Report—
(1) That the first question depends on the Cape Law of Procedure. According to English law we know of no procedure by which recognizances to appear can be taken unless some charge has been preferred against the individual.
As to case (6), according to English law, persons who have been detained in custody on a charge of treason can only be released on bail by the order of one of Her Majesty's Secretaries of State, or of the Queen's Bench Division (11 & 12 Vic., cap. 42, sec. 23).
(2) As regards the second question, in cases (a) and (c), there is, in our opinion,
no legal objection to the course proposed, unless there is some difference in principle · between the Cape and English law on this point.
Case (b) depends on the Cape Law of Procedure.
We havé, &c.,
The Right Honourable Joseph Chamberlain, M.P.,
RICHARD E. WEBSTER. ROBERT B. FINLAY.
&c.,
&c.
* Nos. 12 and 19A.
5180-25-3/1900 Wt 439 D&S 6
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