PUBLIC RECORD OFFICE
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19
C.O.885
Reference :-
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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(3) We think that the Ceylon Government would be justified in taking posses- sion of offending vessels within the area of the pearl banks although outside the three-mile limit, but, of course, it would not be advisable to resort to such seizure unless it be found that adequate protection cannot be afforded otherwise.
The Right Honourable
The Earl of Crewe, K.G.,
&c.,
&c.,
&c.
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We have, &c.,
W. S. ROBSON, S. T. EVANS.
MY LORD,
No. 101.
(SOUTH AFRICA: NORTH-WESTERN RHODESIA, SOUTHERN RHODESIA.) LAW OFFICERS to COLONIAL OFFICE. [Removal of prisoners from North-Western Rhodesia to Southern Rhodesia.] Royal Courts of Justice,
10th August, 1908. We were honoured with your Lordship's commands, signified to us in Mr. Just's letter of the 15th ultimo, stating that he was directed by your Lordship to lay before us the papers noted below and to request the favour of our report upon certain questions raised therein as to the removal of prisoners from North- Western Rhodesia to Southern Rhodesia otherwise than under the Colonial Prisoners Removal Act, 1884.
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That it would be seen that Lord Elgin suggested that "long sentence' prisoners in North-Western Rhodesia might be removed from that Protectorate to Southern Rhodesia, in order to serve their sentences in the gaols of the latter, by means of local legislation in the two Protectorates, recourse to the Colonial Prisoners Removal Act, 1884, and the intervention of a Secretary of State in each removal being thereby avoided. That such an Ordinance had already been enacted in Southern Rhodesia (No. 5 of 1905), and that in due course a Proclamation com- plementary thereto was enacted for North-Western Rhodesia (No. 19 of 1907).
That in submitting Proclamation 19 of 1907 the High Commissioner forwarded an opinion by the local legal adviser questioning its validity. That the points raised in this opinion were dealt with in the draft despatch to the High Commis- sioner which was submitted for the observations of Sir E. Grey in the letter of 18th October from this Department to the Foreign Office. That the Foreign Office reply of the 3rd of December raised substantially two points:-
(1) That the Proclamation 19 of 1907 was ultra vires because it purported to authorise the removal of prisoners beyond the limits of the Protectorate for which the enactment was passed;
(2) That in any case it was essential that prisoners should be removed under the Colonial Prisoners Removal Act, 1884; and that removal by agreement carried into effect by mutual legislation in the two Protectorates was not permissible. That dealing with those two points in order Mr. Just was to state, with reference to Proclamation 19 of 1907, that in your Lordship's view, Section 2 seemed to make it clear that the intended operation of the Proclamation was confined strictly within the limits of the Protectorate and that Section 1, when read with Section 2, made it equally clear that all further action beyond those limits was to be taken under the Southern Rhodesia Ordinance. That the wording of Section 1 (" removed to Southern Rhodesia ") was perhaps loose, but that Mr. Just was to submit that, though the wording might be loose, there was nothing inherently and necessarily altra vires in the Proclamation, and that that being so, that if an enactment could be construed as intra vires on the principle ut res mages valeat quam pereat it should be so construed.
That if, however, the Proclamation must, in our opinion, be construed as con- templating extra-territorial action, Mr. Just was to suggest that the provision for such extra-territorial action as was necessary to carry the object of the Proclamation into effect might be intra vires (Attorney-General for Canada v. Cain, L.R. (1906) A.C. 542).
That with regard to the second point-that it was essential that removal should take place under the Colonial Prisoners Removal Act, 1884, Mr. Just was to refer to the draft despatch to the High Commissioner which contained Lord Elgin's views on the subject, and to observe that the grounds upon which the Foreign Office letter suggested that those views were not well-founded showed that they had been misapprehended in that Department. That the argument in the draft despatch briefly was (1) that if the Imperial Act applied to the removing but not to the receiving Protectorate, the former would be doing something not provided for, but at the same time not prohibited by the Act, whilst ex hypothesi the receiving Protectorate was not governed by the Act; (2) that if the Act applied to the
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