PUBLIC RECORD OFFICE
Reference :-
C.O.885
16 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
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based on the general tenour of the Act, which might be held to imply that the Navy there mentioned is a navy always under the control of the Admiralty. The references to the Admiralty throughout the Act are too numerous to require special mention, and, of course, the Act never contemplated any Navy except a Navy controlled by the Home Government; but that, of course, does not conclude the question, if, as a matter of fact, they do not fall within the words of Section 87.
The Law Officers and Mr. Acland are requested to advise the Admiralty
1. Whether (apart from the provisions of the Colonial Naval Defence Act, 1865) the Legislatures of Ĉanada and Australia respectively, or either of them, have power to create a system of discipline for their Naval Forces which would be enforceable outside the territorial limits of each Dominion, whether on the high seas or in the territorial limits of other British possessions or of the United Kingdom.
2. Is a vessel of war, provided and maintained by a Dominion Government (otherwise than under the Colonial Naval Defence Act, 1865) under the conditions mentioned above, one of His Majesty's ships in commission, and are her officers and men persons in or belonging to His Majesty's Navy, so as to make them subject to the Naval Discipline Act, 1866, by virtue of Section 87 thereof?
Opinion---
1. We are of opinion that (apart from the provisions of the Colonial Naval Defence Act, 1865) neither the Legislature of Canada nor of Australia has power to create a system of discipline for their Naval Forces which would be enforceable outside the territorial waters of that Dominion, either on the high seas or in the territorial limits of other British possessions or of the United Kingdom.
2. We are of opinion that a vessel-of-war provided and maintained by a Dominion Government (otherwise than under the Colonial Naval Defence Act) is, if in commission, one of His Majesty's ships in commission; but we are of opinion that the officers and men of such a ship are not " persons in or belonging to His Majesty's Navy," and therefore that the Naval Discipline Act will not, without amendment, apply to such officers and men.
This conclusion seems to follow from a comparison of the Naval Discipline Act, 1864 (since repealed), the Colonial Naval Defence Act, 1865, and the Naval Dis- cipline Act, 1866.
The Colonial Naval Defence Act, 1865, provided that it should be lawful in any Colony for the proper legislative authority to make provision (inter alia), making the men and officers "of the Colonial force raised under that Act, while ashore or afloat within the limits of the Colony or elsewhere, subject to all the enact- ments and regulations for the time being in force for the discipline of the Royal Navy." The conferring of the power upon the proper legislative authority of a Colony, in such terms as those above quoted, is inconsistent with the view that the expression" person in or belonging to His Majesty's Navy" (which occurs both in the Naval Discipline Act of 1864 and that of 1866) could have been intended to in- clude persons other than those actually members of what is popularly known as the Royal Navy. This view is supported by the fact that the statutes authorising the creation of the Naval Coast Volunteers and the Royal Naval Reserve expressly provide for their being subject to the laws governing the Royal Navy when they are serving afloat in His Majesty's ships, a provision which would have been un- necessary if service in one of His Majesty's ships was alone sufficient to show that they belonged to His Majesty's Navy.
Law Officers' Department,
13th June, 1911.
RUFUS D. ISAACS. JOHN SIMON.
R. B. D ACLAND.
20479
SIR,
No. 142.
(SOUTH AFRICA: SOUTHERN RHODESIA.)
LAW OFFICERS to COLONIAL OFFICE.
[Powers of the High Commissioner regarding commutation of death sentences.]
Royal Courts of Justice,
21st June, 1911. WE were honoured with your commands signified to us in Mr. H. W. Just's letter of the 13th instant, stating that he was directed by you to transmit, for our consideration, the correspondence, &c. (noted in the margin) relative to the ques- tion as to whether the commutation by the High Commissioner for South Africa of a death sentence in Southern Rhodesia to a term of imprisonment with lashes was legal.
High Commissioner, Telegram, 2 June. Colonial Office to Home Office, 5 June. Southern Rhodesia Order in Council, 1898. Extract from Mr. Balfour's Opinion "The Law," pp. 12-13, print 44944.
Southern Rhodesia Ordinance 3 of 1903. Law Officers' Opinion, 17 February, 1911. Home Office, 12 June.
That Section 56 of the Southern Rhodesia Order in Council, 1898, which governed the commutation of death sentences, empowered the High Commissioner to "remit or commute, in whole or in part." That, as at present advised, you inclined to the view that this unqualified power of commutation enabled the High Commissioner to attach any condition to a pardon of this kind, and therefore enabled him to commute a death sentence to imprisonment with flogging.
That Lord Gladstone, however, it would be seen, felt doubts as to his powers. That you would be glad if we would take the papers into our consideration and advise whether, in the case of a person sentenced to death either for rape, or for attempted rape, in Southern Rhodesia, the High Commissioner has power under Section 56 of the Southern Rhodesia Order in Council, 1898, to commute the death sentence to one of imprisonment with flogging :-
(a) with the consent of the prisoner, or
without his consent.
We have taken the matter into our consideration, and, in obedience to your commands, have the honour to
Report-
That we are of opinion that the power of the High Commissioner under Section 56 of the Southern Rhodesia Order in Council to "remit or commute in whole or in part any sentence of the High Court " extends to authorise the commuta- tion of a death sentence into any less punishment, provided always that the substi- tuted punishment is known to the local law. There is a reference to flogging in Section 68 of the Order, and we presume that the substituted punishment is a recognised form of punishment in Rhodesia.
If the analogy of the English Common Law be followed, the consent of the prisoner is required for the substitution.
We have, &c.,
The Right Honourable
Lewis Harcourt, M.P.,
&c.,
&c.,
&c.
• No. 134.
RUFUS D. ISAACS. JOHN SIMON.
(22172r-2.) Wt. 96–481, 25, 12.11. D & S.
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