R
2
Act assented to by the Governor contrary to the terms of such Instructions. The case is not the same as that of an Act which ought to have been, but was not, reserved under an Imperial Act of Parliament.
4. Although we think Sections 3 and 4 of the Act may lead to abuses, we concur with the Report of the Law Officers, dated 31st July, 1897,* that such provisions would not by themselves justify the refusal of assent to the Act if it had been reserved.
Whether, under the circumstances of the present case,' the law in question should now be disallowed by His Majesty is a question of policy.
5. Does not arise.
Generally. We have only to add that, in deciding whether a Bill should be reserved, the fact that it contains any provisions to which assent has been refused, or which have been disallowed, should be treated as decisive without inquiry into the question whether such refusal or disallowance had reference to these provisions, or to other clauses, in the Bill in which they were contained.
The Right Hon. J. Chamberlain, M.P.,
&c.,
&c.,
&c.
We have, &c.,
R. B. FINLAY. EDWARD CARSON,
40195.
No. 112A.
(SOUTH AFRICA.)
(Burghers on Parole in Great Britain.)
CASE FOR THE OPINION OF THE ATTORNEY GENERAL AND SOLICITOR GENERAL.
The following Minute has been forwarded to the Treasury Solicitor from the Secretary of State for the War Department ;—
C
“Mr. E. Esselen, and one or two more burghers of the late Republics, now in England, were paroled in a rather irregular manner, and the engagements they signed allow them to go anywhere freely. They are thus quite out of our control, and may do considerable mischief in the same way as Dr. Krause has "done. May we withdraw all irregular paroles wherever we find them in Great "Britain, and make the holders sign the form in general use? If they refuse, "is it possible to make them prisoners of war? This is a question for the Law Officers of the Crown. It is of great importance, if we are to stop the com- "munications between the Boers in the field and the mission in Holland, that we "should have some means of controlling those who are living in England and
acting as agents for the enemy."
The E. Esselen mentioned in the above Minute was captured outside Pretoria and is undoubtedly a prisoner of war, although he claimed to be entitled to the benefit of the Geneva Convention as a member of the Medical Commission of the Transvaal. A copy of his letter to the Military Governor of Pretoria, dated 12th July 1900, which shows the circumstances under which he was captured, is herewith.
Esselen was released on signing a parole, dated 20th June 1900, in the following
terme :-
+6
"I, Ewald August Esselen, do hereby pledge my word of honour that I remain "in the town of Pretoria until released by proper Military authority, and I further pledge my word that I will not take part in any political discussions, "communicate with the Forces of the South African Republic, either directly or indirectly during the present war, and that I will report myself to the Military "Governor twice a week, on Wednesdays and Saturdays, at noon."
He signed no other parole except the above, but he passed a verbal promise to the Military Governor that he would observe the conditions of that parole when away from South Africa.
A copy is sent herewith of the form of parole which the War Office now desire to get signed by burghers on parole. Paragraph 6 in this form is newly introduced, and it appears that some burghers have signed paroles in the same form with the exception of this paragraph.
It is a matter for the consideration of the Law Officers whether there is any distinction between prisoners captured in the field, like Esselen, and burghers found in the country when occupied by our Forces and arrested.
The Law Officers are requested to advise the Secretary of State for War on the questions raised.
Opinion.
We are of opinion that prisoners who have been released on parole cannot properly be re-arrested so long as they observe the terms of that parole. It would not, in our opinion, be proper to arrest them merely in order to secure from them another form of parole.
This, of course, applies to releases ou parole proper, and not to cases where there has been merely a relaxation of the terms of imprisonment.
Law Officers' Department,
R. B. FINLAY. EDWARD CARSON.
• No. 149 in Vol. V.
14th November 1901.
• Not printed.
E 19814.-8.
25.—8/09. Pk. 8. E. & S.
PUBLIC RECORD OFFICE
Reference :-
C.O. 885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO2
ANNEXURE.
PAROLE.