CO885-(11-13) — Page 653

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THE

PUBLIC RECORD OFFICE

Reference :-

C.O.885

13 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

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MY LORD,

No. 28.

(SOUTH AFRICA.)

LAW OFFICERS to COLONIAL OFFICE.

We were honoured with your Lordship's commands, signified in Sir Rober

Royal Courts of Justice, 15th November 1884. Herbert's letter of the 6th instant, stating that he was directed by your Lordship to invite our attention to our report of the 3rd August 1880, to the treaties made with Mankaroane and Montsioa which would be found at pages 17 and 44 of C.-4194, and to the letter from Mr. Assistant Commissioner Wright at page 145 of C.-4213; copies of which documents were enclosed.

That your Lordship desired to be favoured with our opinion--

1. Whether it would now be competent to Her Majesty, by an Order in Council under the Foreign Jurisdiction Acts, to create a court with jurisdiction over offences committed since the date of the above treaties, within the territories of the chiefs who had signed those documents;

2. Whether a court so created would be competent to try, on a charge of murder, the men who killed Mr. Bethell;

3. Whether having regard to the immediately preceding conflict, the facts as detailed

in Mr. Wright's letter, constituted the crime of murder according to English law;

4. Whether it would be proper to include in an Order in Council, creating a court with jurisdiction over the territories of the chiefs signing the above-mentioned treaties, a clause empowering the Court to receive evidence upon affirmation or declaration, instead of upon oath, similar to clause 26 of the Western Pacific Order in Council of the 14th of August 1879, of which a copy was enclosed.

That Sir Robert Herbert was also to request that we would be good enough to favour your Lordship with any observations upon the subject generally, that might appear to us desirable.

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

Report

That we think, though the point is not free from doubt, that it would be competent to Her Majesty, by Order in Council, to create a court with jurisdiction over offences committed since the date of the two treaties respectively, within the territories of the chiefs who signed those documents. They purport to give Her Majesty power from their date "to rule in the country over white mon and black men the power of publishing laws, appointing judges, and the other power, specified. And theso powers appear to have been accepted on behalf of Her Majesty. It would appear "in addition to therefore that Her Majesty had authority to try and adjudicate upon all offences committed in the territory of each chief, from and after the date of the treaty. This being so, there does not seem to us to be any objection, in principle, to the creation of a court which is to try past offences. It is totally different from the creation of offences ez post facto, which would of course be open to the gravest objection.

2. Wo think, therefore, that a court so created would be competent to try, on a charge of murder, the men who killed Mr. Bethell. We presume that murder was recognised as an offence in Montsioa's territory, and if so we think it may be regarded as an offence against Her Majesty, though no laws have yet been published by her. We would, however, observe that the wording of the treaty is somewhat peculiar. It may be contended that the wording of the third paragraph, which gives authority to arrest and imprison criminals, &c., limits the authority conferred by the preceding general words, and that there is no power to inflict capital punishment.

3. If Mr. Bethell had met his death in the course of the conflict which took place between the armed forces, it would be open to serious doubt whether the crime of murder had been committed. Mr. Wright's letter is to be relied on, and Mr. Bethell was shot when lying wounde But the account of the occurrences contained in

A 15927.-2. 35.-12/85.

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