PUBLIC RECORD OFFICE
Reference :-
114C.O.8
.885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
16 PUBLIC RECORD OFFICE, LONDON
(2) The Courts of this country, in our opinion, would have no jurisdiction to try Dinuzulu for offences against the criminal law of Natal, which are alleged to have been committed by him in Natal and in respect of which he is now in custody, and under
process of trial before the Courts of that Colony.
Assuming, however, that Dinuzulu were free from the custody of the Colonial Courts and were to be found within the jurisdiction of the English Courts, there is no doubt that the King's Bench Division would have jurisdiction to try him for any offence (such as treason or murder) against the English criminal law, which by statute of the Imperial Parliament has been made ex-territorial. In this event, of course, the indictment and trial would be regulated solely by the law of England, and not by the law of Natal, which to a large extent is Roman Dutch Law.
(3) There is no legal procedure under which Dinuzulu could be brought to this country for trial whether (a) without the consent of Dinuzulu and the Ñatal and British Governments; or (b) without the consent of Dinuzulu, but with the consent of the Natal and British Governments; or (c) with the consent of Dinuzulu and the British Government, but without the consent of the Government of Natal.
It might be possible, in fact, for the removal of Dinuzulu from Natal to England to be effected in case (b) as an executive act of the Government of the Colony and of His Majesty's Government, in which event he might be brought to trial before the English Courts when within their jurisdiction, and would be unable to obtain his release on habeas corpus (see the case of the Canadian Prisoners 5 M. and W. 32), but such a course would be open to the gravest constitutional objections, and would, for many reasons, be inexpedient.
(4) The reply to Mr. Jellicoe might be to the effect that the course proposed by him is neither feasible nor warranted by law; that no legal machinery exists by which it could be effected, and that His Majesty's Government, in the circum- stances, do not feel justified in interfering with the due course of trial of Dinuzulu in the Natal Courts in accordance with the local law.
It might further be pointed out that even if the removal of Dinuzulu from Natal to this country for trial here were legally possible, there would be no legal means whatever for securing the compulsory attendance of the necessary witnesses at the trial, and no power exists in criminal proceedings for the examination of witnesses on commission. The difficulty in the way of adducing the necessary evidence would, in fact, be so great as to render the course impracticable even if it were capable of legal justification.
We have, &c..
The Right Honourable
The Earl of Elgin, K.G..
&c.,
&c..
&e.
W. S. ROBSON. S. T. EVANS.
13240
No. 96. (NATAL.)
LAW OFFICERS to COLONIAL OFFICE.
[Whether Martial Law in Zululand could be proclaimed or revoked otherwise than upon the advice of Ministers.]
Law Officers' Department,
-Royal Courts of Justice, MY LORD,
13 April, 1908. We were honoured with your Lordship's commands signified to us in Sir Francis Hopwood's letter of the 4th instant, stating that he was directed by your Lordship to transmit to us a letter from Mr. Jellicoe regarding the continuance of martial law in Zululand. That we should see that in paragraph 3 of his letter he contended that the responsibility for proclaiming and continuing martial law in that part of Natal rested with the Secretary of State.
That the circumstances in which martial law was proclaimed were set out in the enclosed Blue Book [Cd. 3888]. That we should see on referring to pp. 174 and 194 that the Governor proclaimed martial law on 3rd December, 1907, on the advice of his Ministers after informing them that it was, in his opinion, premature, and that subsequently your Lordship associated yourself with Sir Matthew Nathan's objections.
That your Lordship's telegram of 14th October, referred to by Mr. Jellicoe, would be found at page 149 of the Blue Book, but that inasmuch as no suggestion of martial law had at that time been made, it did not appear to be relevant to the argument.
That Sir Francis Hopwood was also to enclose copies of the Natal Letters Patent and Instructions and of the Constitution Act of 1893, and that he was to observe that as Mr. Jellicoe contended the proclamation and exercise of martial law was no doubt an exercise of the prerogative, inasmuch as no statutory authority for its exercise existed in Natal, but that in contending that the prerogative was not to be exercised on the advice of Ministers, he was advancing a contention which was at least inconsistent with all existing precedents.
That in view of the nature of martial law it was not to be expected that any express delegation either to the Governor or to Ministers of the power of proclaim- ing it and administering it would be made, for it was, in its nature either only the exercise of those powers which were inherent in the Crown for protecting the public safety, or the exercise of powers which were beyond the law. That, in the first case, these powers in Natal were, and could only be, exercised on the advice of Ministers who were responsible to the local Parliament for the government of the country generally. That in the second it was natural to assume that those who intended to go beyond the law should, as they were liable to be sued in the Courts of the country, be held responsible to and seek protection from the Legislature of the country, by the passing of an Indemnity Act.
That Sir Francis Hopwood was to point out that if Mr. Jellicoe's contention that the Governor and Secretary of State were responsible for proclaiming or main- taining martial law was correct, the Governor at least would be placed in a position of very great difficulty, inasmuch as if the converse case were to arise, viz., "that he insisted on proclaiming martial law against his Ministers' advice, he would be unable either to carry out the measures which he considered necessary as long as the Executive Government remained in the hands of Ministers, or, if the measures were carried out despite Ministers, to approach the Legislature to obtain the necessary Act of Indemnity. That it did not, in fact, appear that Mr. Jellicoe's contention that responsibility for such measures rested, with the Governor and Secretary of State was consistent with the practice or theory of constitutional government as it was understood in the responsibly-governed colonies.
That Sir Francis Hopwood was to draw our attention to the following para- graphs of the pamphlet on martial law which was issued by the military authorities and used in the Cape during the late South African War :-
"1. DEFINITION.
"Martial law is not law in the proper sense of the term. It is rather the subordination of the ordinary law to the will of the military commander in matters which affect the security of the troops or the public safety. It is in such matters
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