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careful consideration, and we think it very inexpedient to attempt by Proclamation to define beforehand the scope of any such proposed legislation.
3. In our opinion Messrs. Henderson should be informed that the Government have the whole matter under their consideration; that it is one which will have to be dealt with on the restoration of peace; that it is impossible at present to give any undertaking as to what conclusions may be come to in individual cases, and that the subject is not one which can be dealt with by Proclamation.
We have, &c.,
The Right Hon. J. Chamberlain, M.P.,
&c. &c.,
&c.,
R. B. FINLAY. EDWARD CARSON
20809.
No. 394.
(SOUTH AFRICA.)
OPINION BY THE DEPUTY JUDGE ADVOCATE GENERAL.
ADJUTANT-GENERAL,
THESE three men," one apparently a Freach subject, the other two Austrians, were made prisoners of war whilst fighting with the Transvaal force, and sent to St. Helena. It has subsequently transpired that they had obtained permission to pass through Lorenzo Marques to the Transvaal, on signing an undertaking that they would not take up arms in the war.
There is no offence under the Army Act, as that Act is confined to the authoritative exposition of military law, and its application to the British soldier in peace and in war, at home and abroad. These three men are foreigners, and certainly not British soldiers, so that in the case there is no breach of British Military Law.
There is no offence against the ordinary criminal law of England, as, with rare exceptions which do not apply to this case, crimes committed on land by foreigners out of British territory are not subject to British Criminal Law.
There remains the customs of war.
It is difficult to speak with absolute authority as to what are in detail the customs of war.
But there is no doubt that at the present day prisoners of war are treated with leniency and released at the close of the war. (See Instructions for the Government of Armies of the United States in the field, and see Manual of the Laws and Customs of War, published by the Institute of International Law). These men went to St. Helena as prisoners of war, and it would seem to be difficult to treat them otherwise now. No doubt they made an engagement not to enlist, as a condition of their admission to the Transvaal, and they broke that engagement. But the engagement was in Portuguese territory, not in English territory, and they are of French or Austrian nationality. No doubt also they served the Transvaal as mercenaries. But the status of a mercenary appears to be recognised us the same as the national soldier with whom he is incorporated (Calvo vol. IV. S. 2048-Vattel liv: III. ch. II., see heading " Mercenaries").
The Portuguese Government might perhaps have taken action on the breach of the undertaking. The military commander in carrying out the exigencies of war, might have possibly taken severe action at the time of capture. But I cannot suggest any criminal charge, under ordinary British Criminal Law, whether military or otherwise.
J. SCOTT,
D. J. A. G.
June 25, 1900.
I have discussed this question with the J. A. G., and he authorises me to say that he entirely concurs with the above minute which he has read.
ร
June 27, 1900.
• See correspondence in African No. 606.
6430-25-7/1900 Wt324 D&S 5
J. S.
PUBLIC RECORD OFFICE
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