CO885-(11-13) — Page 692

17,925.

SIR,

No. 58.

(SOUTH AFRICA.)

LAW OFFICERS to COLONIAL OFFICE.

Royal Courts of Justice, 12th October 1885. We were honoured with Mr. Wingfield's letter of the 29th September, stating that with reference to our Report of the 10th of August* on the legal position of Bechuanaland, he was directed to transmit to us a copy of a despatch from Sir Hercules Robinson and its enclosures, in which the question was raised whether the Imperial Act 26 & 27 Victoria, cap. 35. was still in force in those portions of the Bechuanaland Protectorate south of the 25th degree of south latitude.

That, as we were aware, Her Majesty by an Order in Council of the 27th of January last authorised the High Commissioner to erect Courts of Justice within the Bechuana Protectorate which lies partly north and partly south of the 25th parallel of south latitude, with jurisdiction over British subjects in all parts, and over persons not British subjects in certain parts thereof, but that no such Courts had as yet actually been erected; and that, for convenience, Major Lowe, who held a Commission as a Magistrate under the second section of the Imperial Act 26 & 27 Victoria, cap. 35, had been issuing warrants against offenders, British subjects, for offences committed south of the 25th parallel of south latitude; the object being that the charges against them should be disposed of by the Courts of the Cape of Good Hope under section 1 of that Act.

That the question had, however, been raised as to whether those Courts had now any jurisdiction over such British subjects, as the territory in which the offences had been committed did not fulfil the condition specified in the Act of "not being within the jurisdiction of any civilised Government," but was to a certain extent within the jurisdiction of the British Government itself under the Treaties of 1884 with Mankoroane and Montsioa, and under the Order in Council of the 27th January 1885.

That the fifth clause of that Order saved other existing jurisdictions, but that as it had not equal authority with an Act of Parliament, and as the Act made the non- existence of civilised jurisdiction a condition of the exercise of jurisdiction, the doubt was whether the saving clause No. V. was effectual for the purpose of keeping the statutory jurisdiction of the Cape Courts alive.

That our opinion was requested upon the point thus raised.

In compliance with the request contained in Mr. Wingfield's letter we have the honour to

Report

That in our opinion the words in the 26th & 27th Victoria, cap 35, "not being within the jurisdiction of any civilised Government," refer to general or territorial jurisdiction, and that the operation of that Act is not ousted or suspended by the passing of an Order in Council under the Foreign Jurisdiction Acts.

The Right Hon. Colonel Stanley, M.P.,

&c.

&c.

&c.

We have, &c., (Signed)

R. E. WEBSTER.

J. E. GORST.

▲ 15997-49, 35.-19/85.

No. 51.

PUBLIC RECORD OFFICE

C.O.885

Reference :-

13 PUBLIC RECORD OFFICE, LONDON

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