CO885-(11-13) — Page 256

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PUBLIC RECORD OFFICE

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CO.

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885

12 PUBLIC RECORD OFFICE, LONDON

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MY LORD,

No. 42.

(NATAL.)

LAW OFFICERS to COLONIAL OFFICE.

Lincoln's Inn, 12th November 1874. We are honoured with your Lordship's commands, signified in Mr. Malcolm's letter of the 7th instant, stating that he was directed by your Lordship to request our opinion as to the legality in the circumstances thereinafter stated, of the imprisonment within the Colony of the Cape of Good Hope of Langalibalele, a Natal Kafir Chief. and his son.

2. That Natal was a separate Colony, having a Government and Legislature distinct from that of the Cape Colony. In Natal the prevailing system of law was the Roman Dutch Law, as established by a local Ordinance, No. 12 of 1845, and modified by subsequent Colonial legislation in accordance with the Law of England. That that system of law, however, only applied in its entirety to the inhabitants of European descent. That with respect to the Native Kafirs, the laws, customs, and usages prevailing among the inhabitants previous to the assumption of Sovereignty by Great Britain were to a considerable extent maintained under the authority of instructions issued by Her Majesty to the Governor, and of a Natal Ordinance, No. 3 of 1849 (of which he was to annex à copy), which after reciting the said instructions, enacted amongst other things that the Lieutenant-Governor should hold and enjoy over all the Chiefs and natives of the district all the power and authority which, according to the laws, customs, and usages of the Natives, were held and enjoyed by any supreme or paramount Native Chief.

3. That in the Spring of last year, Langalibalele, Chief of the Amahlubi tribe, having committed offences, with the recapitulation of which it was not necessary for present purposes that he should trouble us, but which were alleged to be crimes known to and punishable by Native Law, was, with his sons and certain of his tribe, summoned before a Court constituted ad hoc, presided over by the Lieutenant-Governor in person, and comprising certain Native Chiefs and European Magistrates.

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4. That the prisoner was convicted and sentenced by the Court "to banishment or transportation for life to such place as the Supreme Chief or Lieutenant-Governor may appoint." A sentence which upon appeal to the Lieutenant-Governor in Council under Ordinance 3 of 1849 was upheld, and the sentence was carried into effect by the removal of the prisoner to Robbin Island, in the Colony of the Cape of Good Hope, where he was then confined. That the other trials ended for the most part in sentences of imprisonment, except in the case of one of Langalibalele's sons, who was sentenced to five years' transportation.

5. That in several respects the proceedings at the trial had been questioned and seemed to your Lordship open to grave comment and objection. That your Lordship did not, however, propose at present to enter upon those questions, but assuming for the purposes of the case that the Court was a competent one, your Lordship desired to invite our opinion on the sufficiency of the arrangements which had been made for the legal custody at the Cape of Good Hope of Langalibalele and his son, who was like himself sentenced to transportation.

6. That sentences of transportation inflicted by Colonial Courts had on several occasions come under the consideration of our predecessors, and the tenor of opinion on the subject had been that such sentences could not take effect proprio vigore beyond the limits of the Colony the Court of which had inflicted them.

7. That in order, however, to facilitate arrangements under which prisoners sentenced in one Colony might be removed to undergo their sentences in another, the Act of the Imperial Parliament 32 Vict. c. 10. was passed.

8. That under that Act any two Colonies might, with the sanction of an Order of Her Majesty in Council, agree for the removal of any prisoners under sentence of transportation from one of such Colonies to the other for the purpose of undergoing the whole or any part of their sentences within such colony.

9. That the sanction of the Order of Her Majesty in Council might be obtained in the case of a colony having a legislative body on an address of such body to Her Majesty.

▲ 12916-41. 25.-12/84.

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