PUBLIC RECORD OFFICE
ليبيا
Reference :-
PELLIC.O. 8
885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
2
observations quoted under this head in the Memorandum relate to inflicting the penalty of confiscation of property in addition to the punishment of death, and cannot fairly be applied to laws providing for the infliction of confiscation, or of a proper fine, when the death penalty is not inflicted. It is obvious that the imposition of a heavy fine the offender may be equivalent to confiscation, total or partial, and we cannot see on what general grounds of jurisprudence legislation of this kind can be properly impugned. The whole question is really one of policy, and must be answered according to the particular circumstances of the place and time.
upon
With regard to Head II., "Hostile acts of individuals or small bands," we would point out that Article II. of the Regulations annexed to the Second Convention of the Hague relates only to a levée en masse on invasion when there has not been time to organize in accordance with Article I. This Article appears to us to have no application to the present circumstances of the Transvaal and Orange River Colony.
We do not regard the distinction between occupied and unoccupied territory as in itself very material to the subject of this head.
With regard to Head III., "The use of British uniforms by Boers," the distinction drawn between the use of British uniforms before action and in action seems to us one that is certain to break down in practice. There are, no doubt, some authorities which may be quoted to the contrary, but we should be disposed to think that, speaking generally, the use of the enemy's uniform in warlike operations forfeits any claim to be regarded as a legitimate belligerent.
As to Head V., "Collective responsibility for outrages," we would observe that this is a point on which it is particularly difficult to dogmatise. Whenever collective responsibility of this kind is enforced there is, of course, a danger that some innocent persons may be made to suffer along with the guilty, but, on the other hand, there are cases in which it is sufficiently clear that there has been a general complicity of the population of the district, and that the enforcement of collective responsibility is the only effective way of securing immunity from outrage. We regard the enforcement of collective responsibility as a legitimate weapon in warfare, but its application equires great judgment and discrimination. There is great force in the remarks made in the Memorandum as to the slender efficacy of such means in a sparsely populated district, where the outrage has been committed by members of a mobile force operating from a distance, but, on the other hand, we cannot advise that our Generals in South Africa should be deprived of a weapon which, in suitable cases, may be properly employed and as experience has shown--with a signally deterrent effect.
Generally. We have only to add that the American Instructions appear to us to be extremely well framed, and, while we must guard ourselves against endorsing every one of such instructions, and adopting the consequences which may logically flow from it, we think that they afford a very useful general guide on such subjects as are dealt with in the Memorandum now under consideration.
The Right Hon. J. Chamberlain, M.P.,
&c.
&c.
&c.
We have, &c.
R. B. FINLAY.
EDWARD CARSON.
43500
No. 119.
(CANADA.)
LAW OFFICERS to COLONIAL OFFICE.
[Petition from Executive Council of Manitoba on subject of lands reserved by Government of Canada for school purposes.]
Royal Courts of Justice,
December 10, 1901.
SIR,
We were honoured with your commands signified in Mr. H. Bertram Cox's letter of the 7th ultimo, stating that he was directed by you to lay before us a des- patch, No. 253, of the 31st August last, from the Governor-General of the Dominion of Canada covering a Memorial addressed to His Majesty the King in Council by the Executive Council of the Province of Manitoba, on the subject of the lands reserved by the Parliament of Canada for school purposes in that Province.
That Mr. Bertram Cox was to say that, before considering whether the subject of that Memorial was a matter which could properly be referred to the Judicial Com- mittee of the Privy Council under 3 and 4 William IV. Cap 41, Section 4, you referred the Memorial to the Clerk to the Privy Council in order to ascertain whether, having regard to the terms of a recent letter received from the Privy Council Office upon another matter, the fact that the Memorial was addressed to the King in Council would prevent it from being submitted to His Majesty at all.
That on the 19th October the Clerk to the Privy Council replied that the fact men- tioned in the last paragraph need not be any bar to the matter being referred specially to the Judicial Committee under 3 and 4 William IV., Cap 41, Section 4, should the Secretary of State deem it desirable to recommend that course.
That it would appear to you that the alleged improper withholding of school lands, and the proceeds of sale thereof, being a political question between the Executive Council of a Province and the Federal Government of the Dominion, the existing state of affairs could only be altered by legislation in the Dominion Parliament, and, having regard to paragraph 2 of the Governor-General's despatch, such a settlement would seem to be unattainable, whilst the alternative of legislation in the Imperial Parlia- ment was presumably impracticable.
That so far as you were aware there was no precedent exactly covering the cir- cumstances of the case, and that Mr. Cox was to point out that in other somewhat similar disputes, as for example the Ontario-Manitoba boundary question, 1884, and the Queensland Money Bill case, 1886, the Privy Council was referred to upon the joint petition of both parties concerned.
That Mr. Cox was to request us to take the papers into our consideration, and to report:-
1. Whether, having regard to its subject matter the Memorial was one which the Secretary of State might properly recommend for special reference to the Judicial Committee under 3 and 4 William IV., Cap. 41, Section 4?
(2.) Whether, having regard to the practical difficulties which, owing to the atti- tude of the Dominion Government, would attend the settlement of the question if it were decided by the Judicial Committee, it was desirable to refer the Memorial to that body under the Statute?
We have taken the matter into our consideration, and, in obedience to your commands, have the honour to
Report-
1 and 2. That we are of opinion that the subject matter of the Memorial is not one which ought to be referred to the Judicial Committee under 3 and 4 William IV., Cap. 41, Section 4.
1040-25-12/1901 Wt 352 D & S 5