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PUBLIC RECORD OFFICE

Reference :-

CO.

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

885

12 PUBLIC RECORD OFFICE, LONDON

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3. Whether if the London and South African Company petition. as suggested by their Counsel, to have the case referred to the Judicial Committee of the Privy Council, the Secretary of State might properly accede to this request with a view to their advising Her Majesty upon two points :—

Whether the Crown r the Company are entitled to the minerals under the land held by the Company; and whether Her Majesty should leave this Griqua Land Act in operation, or disallow it.

Sir Henry stated that, in considering the question, it would be borne in mind that the Court at Griqua Land is a newly established Court, and that its decision, whatever may be, upon the question of title to the minerals, will almost certainly be brought up on appeal to the Privy Council.

it

In obedience to your Lordship's commands we have the honor to

That-

Report

1. We think Her Majesty should be advised to disallow Ordinance No. 5 of 1874. passed by the Legislative Council of Griqua Land West.

2. With regard to the three proclamations issued by the Commissioners acting for the Government, we are of opinion that an erroneous statement contained in such proclamations with reference to the rights of the Crown cannot prejudicially affect such rights, unless some persons claiming against the Crown have acted upon such stateinent, and, upon the faith of it, have placed themselves in a position which they would not otherwise have occupied. In such a cas as that alluded to it might be contended that the Crown was estopped from disputing the correctness of the statement in the proclamation. And we incline to think that this would be so held; and that the Crown would be bound, if the proclamations were issued by properly authorised persons. The question as to the effect of the proclamations is one for the ordinary tribunals of the Colony in the first instance, and ultimately for the Privy Council. We are, however, of opinion, that the fact of the Ordinance being disallowed will in no way prejudice the position of the Crown in this matter; the Crown will simply be remitted to the position which it occupied before Ordinance No. 5 was passed.

We think that the Colonial Government should be given to understand that they may dispute the validity and effect of the proclamations in any proceedings that may be taken at law to decide the title to the minerals.

3. Should the London and South African Company petition to have the case referred to the Privy Council, we should like to have the opportunity of considering such petition before expressing a final opinion as to whether Her Majesty may properly be advised to accede to their request. As at present advised, it appears to us that to refer to the Privy Council in a summary manner a question of title to Colonial Lands would be an inconvenient interference with the functions of the ordinary Colonial tribunals.

We have, &c. (Signed)

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

RICHARD BAGGALLAY. JOHN HOLKER.

8169.

MY LORD,

No. 32.

(MALTA.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, July 1874. We are honoured with your Lordship's commands, signified in Sir Henry Holland's letter of the 10th July instant, stating that he was directed by your Lord-

ship to transmit to us the accompanying copy of a despatch, with enclosures from the No. 82, Governor of Malta, asking for instructions in regard to the prosecution of certain 4 July 1874. persons passing through Malta having slaves in their service; and also stating that he, Sir Henry Holland, was desired to request that we would take these papers into our consideration, and favour your Lordship at our earliest convenience with our opinion on the following points

1. Whether the Governor can, in cases like the present, detain the slaves against their will.

2. Whether criminal proceedings can be instituted under the Imperial Acts relating to slavery against the masters of the slaves for bringing slaves into Colonial waters.

3. Whether the evidence against Mustapha Effendi and Aisie, as stated in the Despatches and enclosures, is, in our opinion, sufficient to sustain a conviction.

That with respect to taking proceedings against the master of the ship in which slaves are brought, Sir Henry Holland stated he was to transmit to us copies of a report from the late Law Officers of December 16th, 1872, and of a despatch from the Governor of Malta, November 12th, 1872, and of letters from Sir P. Francis of 19th and 26th September, upon which their opinion was desired; and that from that report it would appear that the Law Officers were of opinion that such proceedings could not be taken, as he cannot in ordinary cases be taken to know the status of passengers, whether they are free, or part of the family of a passenger, or meant for sale.

Sir Henry Holland, in conclusion, said he was to request that we would report to your Lordship whether we concur in that opinion.

In obedience to your Lordship's commands we have the honour to

That-

Report

1. In our opinion the Governor of Malta cannot, in cases like those referred to in his despatch, No. 82, to your Lordship, detain the slaves against their will.

2. That we entertain considerable doubt whether, under the Imperial Acts relating to slavery, criminal proceedings could in such cases as those above referred to, be instituted against the masters who brought slaves into Colonial waters. We have no doubt that such proceedings would be extremely impolitic, and it must be in all similar cases borne in mind that the masters of such slaves are not engaged in slave traffic, are the subjects of a foreign power which recognises as part of its institutions the existence of slavery, and are innocent of all intention of breaking the law of the country.

The practical result of the institution of such proceedings would be to close the harbour of Malta to all subjects of the Porte who might be travelling with

servants.

3. If the mere fact of bringing a slave into Colonial waters is sufficient to procure a conviction, there is sufficient evidence to sustain a conviction against Mustapha Effendi and Aisie; but we beg to refer your Lordship to the answer to the second question for our reasons why no proceedings should be taken.

4. We entirely agree with the opinion of the late Law Officers, and think that no

proceedings should be taken against the master of the ship.

The Right Hon. Earl Carnarvon,

&c.

&c.

&c.

(Signed)

We have, &c.,

RICHARD BAGGALLAY. JOHN HOLKER.

J. PARKER DEANE.

12916-33. 25.-12/84.

9166.