(No. 84.) Sir,
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No. 3.
The Earl of Carnarvon to Governor Sir H. Barkly, G.C.M.G., K.C.B.
Downing Street, August 31, 1875.
I HAVE had under my consideration your despatch No. 109 of the 7th September, 1874, inclosing the Acts of the Legislature of the Cape of Good Hope for the session of 1874, numbered from 6 to 31 inclusive.
2. Act 13 is under reference to the Board of Trade.
Of the remaining Acts, the only ones on which I desire to address any observations to you are the Acts No. 16, entitled, "An Act to amend the law relating to attesting witnesses," and Act No. 29, “An Act to further facilitate the apprehension in this Colony. of certain persons who have committed crimes in the Colony of Natal, in the Province of Griqua-Land West, in the Orange Free State, and in the South African Republic."
3. My impression of the Act No. 16 is similar to that which you yourself originally formed respecting it; and the explanation given to you by Mr. Attorney-General Jacobs does not meet the objection arising from the hardship which would be inflicted on an innocent legatee not a next of kin, who should lose his legacy by the fact of an attesting witness taking a benefit directly or indirectly. The rule of the English law, which, while leaving good the will, voids the legacy to the witness, equally guards against fraud in the witness without injuring innocent legatees. I would suggest that you should invite your responsible advisers to consider the propriety of bringing the law on this subject into conformity with the approved principle prevailing in England and generally throughout the Empire.
4. With regard to the Extradition Act No. 29, I have to observe that whilst I am fully impressed with the necessity which exists for co-operation amongst the various South African Governments in apprehending and punishing offenders, I regard the Act as going further than, as at present advised, I can recommend Her Majesty to approve. The Act applies not only to the neighbouring British_communities of Natal and Griqua- Land, but also to the two independent Republics. It in no way limits or defines the character of the offence in respect of which persons are to be given up, and under it even political offenders would be liable to rendition. The Act, moreover, seems to me to assume a certainty of knowledge as to the legislation and the administration of justice in these Republics, which without a special reference to and an understanding with them it clearly is impossible to possess. The Cape Colony already possesses in the Act No. 19 of 1872 an extradition law which may perhaps for the present meet the requirements of the case; but the whole question needs careful consideration, and is one respecting which, as it seems to me, the States and Colonies of South Africa might with special advantage confer.
5. I may add that not only with reference to the two South African Republics, but also to the Colouies as between themselves the Act is not free from objection, as it is very desirable that the precautions and formalities prescribed by the Imperial Act 6 and 7 Vict., cap. 34, as amended by 16 and 17 Vict., cap. 118, should be observed.
6. In making these observations I have not overlooked the fact that last year I advised Her Majesty to sanction an Ordinance No. 4 of 1874, passed by the Legislature of Griqua-Land West, which, upon an examination of its somewhat unusual and not very clear language, proves to have an effect similar to that of the Cape Act No. 29 of 1874. But you will perceive that in my despatch No. 85† of this date I have instructed the Officer administering the Government to invite the Legislature of Griqua-Land West to reconsider its course in this matter, and to amend the law in conformity with the excellent model afforded by the Cape Act of 1872.
7. It has been with reluctance that I have felt compelled thus to express my dissent from a law enacted by the Cape Legislature; but the matter is one of Imperial concern, and affects the relations to be maintained towards other States. Your Ministers will, I doubt not, readily understand the position in which I am placed in this respect, and will be prepared to submit to Parliament a measure which, as regards the neighbouring Republics at least, shall have the effect of placing the law regarding the rendition of offenders on the basis of the Act No. 19 of 1872, and in the meantime I trust that they will abstain from entering upon or continuing any formal negotiations with the neigh- bouring Republics for giving effect to the Act in respect to either of them.
8. This question is, in fact, one which would very conveniently be brought under discussion in the event of the Republics being associated in a Confederation with Her Majesty's South African Colonies; and while there is any prospect of such a result being
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attained, I think it may be desirable not to proceed with legislation on the subject of extradition.
9. With regard to the other Acts which I have not particularly noticed, viz., Nos. 6, 7, 8, 9, 10, 11, 12, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, and 31, I have only to acquaint you that Her Majesty will be advised to leave them to their operation.
I have, &c.
(No. 85.) Sir,
(Signed)
No. 4.
CARNARVON.
The Earl of Carnarvon to Governor Sir H. Barkly, G.C.M.G., K.C.B.
Downing Street, August 31, 1875.
IN connection with the Cape Act, No. 29, of 1874, my attention has been called to the provisions of the Griqua-Land West Ordinance, No. 4 of 1874, which was trans- mitted in your despatch No. 40, of the 21st of April, and which, upon my advice, Her Majesty hus sanctioned.
From my despatch No. 84† of this date you will perceive that, upon reconsideration, I am inclined to disapprove the lax principles of extradition which are embodied in the Cape Act No. 29, and the Griqua-Land West Ordinance No. 4 of 1874, and I have to request that you will communicate my despatch No. 84 and this despatch to the Officer administering the Government, with instructions to lay upon the Legislature of Griqua- Land West an Ordinance repealing Ordinance No. 4 of 1874, and making provision in its stead for the extradition of offenders upon the model afforded by the Cape Act No. 19,
of 1872.
(No. 140.) Sir,
No. 5.
I have, &c. (Signed)
CARNARVON.
The Earl of Carnarvon to Governor Sir H. Bulwer, K.C.M.G.
Downing Street, October 4, 1875. I HAVE received Sir Garnet Wolseley's despatch No. 143 of the 30th of June, requesting information as to the decision of Her Majesty's Government on the Cape Extradition Act No. 29 of 1874.
This Act was long under the consideration of Her Majesty's Government, and I have not tendered any advice to Her Majesty upon the subject; but in a despatch, of which I inclose an extract, dated the 31st of August last,† I have expressed to Sir Henry Barkly certain objections to the provisions of the Act, especially in relation to the South African Republics.
I have to request that you will call on your Attorney-General for a further report on he particular case which gave rise to Sir Garnet Wolseley's inquiry,
As quoted in the 6th paragraph of Sir Garnet Wolseley's despatch, Mr. Gallwey says,
the "Court have decided that my opinion is right, and that the Imperial Statutes only extend to the crimes therein specified; theft is not one of these crimes."
On referring to the Act it will be seen that they do not "specify" particular crimes, but the effect of the two is to make "any felony" an extraditable offence between Colonies.
I should therefore wish the Attorney-General to consider whether all larceny, being
a felony by the law of England, is not the standard contemplated by Parliament, for if this be the case I do not, as at present advised, see why the case, if one of theft, could not have been disposed of under the Imperial Acts, 6 & 7 Vict. c. 34, and 16 & 17 Vict. c. 118.
I have, &c.
(Signed)
CARNARVON.
• Not printed.
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