16934
PUBLIC RECORD OFFICE
Reference :-
TITLC.O. 885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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LO. to C.O. Reports noted in the margin. That it would be observed that the first of those Reports 8th Nov. seemed to contemplate the possibility of a Colonial Legislature imposing on persons 1861. domiciled in the Colony quasi-criminal responsibility for offences committed outside ita L.O. to C.O. territorial limits, but that all the other reports treated the creation of extra-territorial juris- 16th July diction as being beyond the power of a Colonial Legislature, and that that principle was apparently approved in the decision of the Privy Council in JrLeod v. Agent-General for New South Wales (J.C.), 1891, A.C. 455.
1875.
L.O. to C.O.
8th Aug.
1883.
1.O. to C.O.
3rd Feb.
1896.
That Mr. Bertram Cox was desired to request us to advise you upon the above points.
We have taken the papers into our consideration, and, in obedience to your com- mands, have the honour to
Report-
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1. That we do not think that the Crown is now competent by Order in Council to confer on Courts created in Zululand the extra-territorial jurisdiction which Regulation 28 of the Laws and Regulations for the government of Zululand purports to confer.
At the time of the conquest of Zululand, it would have been competent for the Crown, dealing with the conquered country, to render punishable in its courts crimes committed by British subjects settled there, or by persons not subjects of any other civilized Power, though committed elsewhere.
It would have been contrary to the usage of nations to confer such jurisdiction in respect of any persons being the subjects of any other civilised Power; as, indeed, the Imperial Parliament itself has never exercised such a power over such persons.
2. Apart from the question of the power of the Crown to confer extra-territorial jurisdiction, we do not think that any such power was delegated to the Governor of Zulu- land by the Commission of 19th May, 1887, which only authorised the Governor to make laws "for the peace, order and good government of the territory," and which words would not confer power to make such a law as is contained in the 28th Regulation.
The Right Hon. Joseph Chamberlain, M.P.,
&c.,
&c.,
&c.
We have, &c.,
R. B. FINLAY, EDWARD CARSON.
+ Nos. 89 in Vol. 1., 64 and 300 in Vol. III., and 102 in Vol. V.
SIB,
No. 83.
(GENERAL.)
LAW OFFICERS TO COLONIAL OFFICE.
Royal Courts of Justice, May 14, 1901. We were honoured with your commands signified in Mr. H. Bertram Cox's letter of the 3rd instant, stating that, with reference to the Attorney-General's Report of the 8th February last. he was directed by you to transmit to us, fer our consideration, a copy of correspondence between the Colonial Office and the Clerk of the Crown in Chancery C.0. to with respect to a telegram received on the 18th April from the Officer Administering the Clerk of Government of Natal.
Crown,
24th April,
Clerk of
That Mr. Bertram Cox was to transmit to us a copy of the Notice in the "London 1901. Gazette" of 15th February, which was referred to in that telegram. That he was also to enclose a form of a draft Warrant for the appointment, by Letters Patent, in a Colony, of Crown to C.O., 26th His Majesty's Counsel.
That you had acted on the assumption that, under the Imperial Statute I. April, 1901. William IV. Chap. 4 Section 2, Letters Patent appointing Queen's Counsel, which were in force at the date of the demise of the Crown, were continued in force for 18 calendar months, and had so informed the Governor of Western Australia in reply to a telegram of enquiry upon the point; and that it was assumed that when the Bill, which had been introduced into the House of Commons under the title of the "Demise of the Crown Bill," had become law, it would be unnecessary to issue any further Letters l'atent for the re-appointment of gentlemen who were appointed of Her late Majesty's Counsel in the Colonies.
That it would be seen, however, that the question had arisen whether persons who were appointed by Her late Majesty to be Queen's Counsel had not been already appointed King's Counsel by the Gazette Notice above referred to.
That Mr. Bertram Cox was to request us to take the papers into our consideration and advise you :-
1. Whether the Gazette Notice of the 15th of February operated as an appointment persons who had been appointed by Her late Majesty to be Queen's Counsel in the Colonies to be of His Majesty's Counsel in the Colonies ?
of
2. Generally.
We were further honoured with Mr. Bertram Cox's letter of the 6th instant, informing us, with reference to paragraph 2 of his previous letter, that in the case of non-responsible Government Colonies a Warrant was forwarded to the Governor authorising him to appoint someone as King's Counsel; and that in the case of responsible Government Colonies, e.g., Natal since 1873, it was not customary for the Crown to intervene, or to approve such appointments which were left entirely to the local Government to make.
We have taken the matter into our consideration, and, in obedience to your com- mands, have the honour to
Report-
1. That in our opinion this question must be answered in the affirmative. According to the statement in the Gazette the Letters l'atent of 15th February, 1901, apply to all persons who were appointed by Her late Majesty to be of Her Majesty's Counsel. Majesty's Counsel in the Colonies are within these terms.
His
2. We may add that the question seems to be academic. If it were possible to treat these Colonial appointments as not being made by the Crown they would not become vacant by the demise of the Crown. We think, however, that they must be treated as having been made by the Crown. They would not become void till the expiration of 18 months after the demise of the Crown (1 Will. IV. Cap. 4 S. 2), and if the "Demise of the Crown Bill" becomes law they will not become void at all.
We have, &c.,
R. B. FINLAY, EDWARD CARSON.
The Right Hon. Joseph Chamberlain, M.P.,
&c.,
&c.,
&c.
* No. 71.
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