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PUBLIC RECORD OFFICE
Reference *--
། ། ། ། ། ། mmi mmf mC.O. 885
15 PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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That the Law Officers in their Report of 19th October, 1899,† advised that the Crown had power by Order in Council to legislate to expel and exclude from Gibraltar any undesirable person whether a British subject or not. That it was not, however, clear that the two cases were parallel. That Gibraltar was a fortress, whereas the Transvaal and Orange River Colony were large Countries which had, and would have, complete systems of govern. ment and law of their own. That the Commission held by Lord Milner merely placed him provisionally in the place of the Military Officer who conquered and annexed, and was empowered provisionally to administer the Country. That assuming, therefore, that the legislation necessary to banish individuals without form of trial could properly be passed by the duly constituted Legislature of a Crown Colony, it did not seem necessarily to follow that Lord Milner, in whose single person were united for temporary purposes the whole executive and legislative powers could properly legislate for such a purpose.
That, on the other hand, Mr. Bertram Cox was to observe that although it would appear to be contrary to law to banish without legislative Banction, you were not aware of any authority which decided that a law providing for banishment could only be valid if passed by the Imperial Parliament, and that if the Crown possessed power by act of the Prerogative to make laws for the peace, order and good government of a conquered territory, the enactment of a law giving power to banish persons whose presence was detrimental to the public safety or to public order would appear to be a natural and necessary exercise of the prerogative under the circumstances of recent conquest.
That Mr. Bertram Cox has to request that we would report
1. Whether, in our opinion, Lord Milner had power, under his Commission of 8th October, 1900, to pass a legislative Proclamation banishing persons, British subjects
or otherwise, without trial, from the Transvaal and Orange River Colony?
2. If not, whether a local Legislature, formally constituted by Letters Patent and Order in Council, would have such power?
3. Whether an Order in Council could properly be passed in this Country for the purpose?
4. Generally.
We have taken the papers into our consideration, and, in obedience to your commands, have the honour to
Report-
That it appears to us that effect can best be given to the Proclamation of the 7th August so far as the Transvaal and Orange River Colony are concerned by an act of State in virtue of the power which the King has to deal with conquered territory.
The question will not arise in a practical form until, on the restoration of peace, it is necessary to make arrangements as to the return of prisoners of war, inasmuch as until that event they remain in custody as prisoners.
If Lord Milner were, under his Commission of 8th October, 1900, to pass a legislative Proclamation banishing from the Transvaal and Orange River Colony—without trial--all who have under the terms of the Proclamation of 7th August, 1901, become liable to that penalty, questions might be raised similar to those which were argued, but not decided, in Sprigg v. Sigcau (1897 App. Cases 238-see p.p. 241 & 248), and it might also be urged that such a legislative Proclamation passed for the purpose of giving effect to the intimation contained in the Proclamation of the 7th August did not fall within the terms of his Commission to make laws for the peace, order and good government of these territories.
The power of a local Legislature constituted by Letters Patent and Order in Council would depend upon the terms of the Letters Patent and Order, but questions similar to those above indicated might be raised unless the Letters Patent and Order in Council contained special powers.
We think when the time comes for giving effect to the Proclamation of 7th August the most appropriate method will be that of Örder in Council. Even if by that time, a local Legislature has been constituted, we presume a power would be reserved to His Majesty to legislate by Order in Council so that no technical difficulty would arise so far as the Order in Council might be regarded as an act of legislation in the Transvaal and Orange River Colony.
↑ No. 234 in Vol. V.
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So far as the measure is to be regarded as an act of State in virtue of the power of the Sovereigu for the settlement of a conquered country, an Order in Council seems to us the most appropriate mode of carrying it out.
The whole subject is one of some difficulty and delicacy, and will require consideration, when the time comes, by the light of circumstances as they then exist.
We have, &c.,
The Right Honourable J. Chamberlain, M.P.
&c.
&c.
&c.
R. B. FINLAY. EDWARD CARSON.