·
PUBLIC RECORD OFFICE
Reference :-
C.O. 885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
2
That Mr. Bertram Cox was to request us to take tho above matters into our consideration and to advise you-
1. What steps would legally be necessary to provide for the abrogation, temporary or permanent, of the present representative Constitution of the Cape Colony and the establishment in place thereof of an Executive Council and a non- eleative Legislative Council?
2. Whether the substituted Constitution proposed could be established under Letters
Patent, or whether an Act of the Imperial Parliament would be necessary
?
3. If an Act of the Imperial Parliament was necessary what, speaking generally,
should be the form which that Act should take?
We have taken the matters into our consideration, and, in obedience to your commands, have the honour to
Report—
1 and 2. That an Act of the Imperial Parliament would be necessary.
3. The Act should provide that His Majesty may make provision by Order in Council for the Government of Cape Colony for a period of (say) two years, and that the Parliament of Cape Colony shall not meet within that period unless His Majesty shall, by Order in Council, order its meeting.
The Right Honourable J. Chamberlain, M.P.,
&c.
&c.
&c.
We have, &c.
R. B. FINLAY, EDWARD CARSON.
25940.
SIB,
No. 156.
(SOUTH AFRICA.)
LAW OFFICERS to COLONIAL OFFICE.
[Oustody of Prisoners sentenced by Courts-Martial in South Africa.]
Royal Courts of Justice,
24th June, 1902.
We were honoured with your commands, signified to us by Mr. Bertram Cox in his letter of the 20th instant, stating that he was directed by you to request our advice on certain questions with regard to the custody of prisoners sentenced by courts- martial in South Africa to terms of penal servitude which had arisen in consequence of the conclusion of hostilities in South Africa.
That the Ordinance approved by us in our report of the 14th of March 1902" provided in clause 1 that the Administrator of Seychelles might order the detention of any prisoners sentenced in South Africa to any term of penal servitude or imprisonment for the unexpired term of their respective sentences, but having regard to the fact that (as pointed out by us in our report of the 6th of July 1901†) on the termination of the existence of martial law persons sentenced under martial law were entitled to release, the question arose whether the law of Seychelles would be sufficient to authorise their detention after martial law had ceased in the colony in which they were sentenced.
That it would be impossible, owing to the inability of the Cape Parliament to meet, to provide by legislation in the Cape Colony for the continuance of martial law sentences after the termination of the existence of martial law, and that it had been suggested that any persons now confined under martial law sentences in Cape Colony who still remained there might, while martial law still existed, be removed to the Seychelles or some other colony in which an Ordinance similar to that of Seychelles might be passed, there to undergo their sentences, but that this course could not be adopted if there were any doubt as to the power given by the Seychelles Ordinance, or any similar Ordinance, to detain them after martial law had come to an end in the colony in which they were sentenced. That Mr. Bertram Cox was therefore to request that we would take these matters into our consideration and advise you→
(1.) Whether it would be possible to remove prisoners sentenced in South Africa by courts-martial to another colony under the provisions of martial law, with a view to their being detained to serve out their sentences in that colony after martial law had expired in the colony in which they were sentenced ? (2.) Whether the terms of the Seychelles Ordinance referred to would be sufficient to authorise the detention of any such persons in Seychelles to serve out their sentences after martial law had terminated in the colony in which they were sentenced?
(3.) If not, what legal steps should be taken to provide for the detention of
prisoners sentenced by court-martial after the termination of martial law ? (4.) Generally.
We have taken these matters into our consideration, and in obedience to your commands have the honour to
Report-
1. That we do not think that it would be defensible to remove prisoners to another colony to serve out their sentences there after martial law had expired. Such a removal, in view of the approaching expiration of martial law, might, in our opinion, be with good reason attacked in Parliament, and might also be held to be illegal as not justified by the exigencies of martial law.
2. The sixth clause of this Ordinance might throw difficulties in the way of prisoners desirous of questioning their further detention on the ground that their sentences had ceased by the expiration of martial law. But, looking at the question broadly,
* No. 136.
† No. 88.
E 92091.-3.
25.-7,08. Pk. 11. E. & 8.