CO885-(13-15) — Page 120

12,821.

MY LORD,

No. 152A.

(SOUTH AFRICA.)

LAW OFFICERS to FOREIGN OFFICE.

Royal Courts of Justice, June 7, 1889.

WE were honoured with your Lordship's commands, signified in Sir Philip Currie's letter of the 20th ultimo, stating that he was directed by your Lordship to transmit to us the papers noted in the accompanying list in connexion with a question which had arisen as to whether a foreign protectorate was included within the meaning of the term "dominions of a friendly State Act, 1870 (33 & 34 Vict. c. 90), so as to render the provisions of that Act, and more as employed in the Foreign Enlistment especially of section 11 thereof, applicable to recruiting operations carried out on British soil for the purposes of an expedition designed against the governmont of a protectorate of a Power friendly to Great Britain. That the circumstances under which the question had arisen for determination were briefly as follows: That in March last a representation was made to Her Majesty's Government by the German Ambassador at the Court of St. James to the effect that a British subject named Lewis who had certain claims, hitherto unrecognized, against the German Government in connexion with concessions alleged to have been made to him by the native Chiefs of the Damara region, was recruiting forces within the limits of Cape Colony with a view of attacking the authorities of the German Protectorate which had now been established in Damaraland.

That the Foreign Enlistment Act, 1870, was, in accordance with the provisions to that effect in section 3 thereof, put into force by the Government of Cape Colony on September 28, 1870, by proclamation duly published in the Cape Government Gazette.

That inquiries which were at once instituted by Her Majesty's Government on receipt of the German Ambassador's representation had proved that the fears of the German Imperial Government were, in that particular instance, fortunately, groundless, but that the general question of the applicability of the Foreign Enlistment Act to cases of that kind having thus accidentally arisen, appeared to your Lordship to be of such importance that you were desirous of at once obtaining our opinion with regard to it.

•

That it was clear that territory over which a British Protectorate had been proclaimed on behalf of Her Majesty was not, for the purposes of the Act, part of the British dominions; and that assuming the word "dominions" analogous sense in the expression " dominions of a friendly State," it would also appear to be used in an that territory over which a friendly Power had extended its protection could hardly he included within that expression.

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That the Protectorates, for instance, of the German Empire were not considered to form an integral portion of the State domain, and were technically termed "Schutzgebiet ' (or State protected territory), in contra distinction to "Reichsgebiet " (or the domain of the Imperial State).

That at the time the Foreign Enlistment Act was passed the modern system of protectorates had not attained its present development, and that it was probable that the occurrence of such a case as that to which our attention was now invited was not contemplated by the Legislature.

That if, however, such a case should be considered not to fall within the provisions of the existing Act, it night probably be found advisable to introduce a short amending Act to extend the operation of those provisions to the protectorates of a friendly foreign Power.

That Sir Philip Currie was to request that we would take the papers transmitted with his letter into our consideration, and that we would favour your Lordship with our opinion as to whether the provisions of the Foreign Enlistment Act, 1870, were applicable as between the dominions of Her Majesty and the protectorates of a friendly foreign Power; and, if not, whether further legislation should be introduced with tho view of making the provisions of that Act so applicable.

That your Lordship would bo glad to be favoured, at the same time, with any general observations which we might have to offer on the matter.

A 57014.-24. 25.-7/89.

PUBLIC RECORD

OFFICE

Reference :-

C.O.885

13 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TOPage 121

2

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

Report

That, in our opinion, the expedition which was supposed to be preparing within the limits of Cape Colony to proceed to the Damara region would have been within the provisions of the 11th section of the Foreign Enlistment Act.

The Damara region, although a protectorate of the German Government, is not part of the dominions of that State within the meaning of the action, but it is a friendly foreign State within the meaning of section 11 taken together with section 30 of the Act, and we see no necessity for any further legislation on the subject.

The Marquis of Salisbury, K.G.

We have, &c., (Signed) RICHARD E. WEBSTER.

EDWARD CLARKE.

12,158.

No. 153.

(WINDWARD ISLANDS.)

LAW OFFICERS to COLONIAL OFFICE.

- Mr LORD,

Royal Courts of Justice, June 18, 1889. We were honoured with your Lordship's commands, signified in Mr. Meade's letter of the 8th instant, stating that he was directed to inform us that the Governor-in- Chief of the Windward Islands had inquired of your Lordship by telegraph whether an appointment of an Acting Chief Justice could be made for holding Criminal Sessions in the Island of Grenada during the absence of the Chief Justice to sit in one of the other Islands, in the Court of Appeal of Barbados and the Windward Islands.

That Mr. Meade was to enclose a copy of the Grenada Act* to provide for the establishment of the Court of Appeal, and to direct our attention to the words in section 2 "or the persons acting in their capacities for the time being," and to section 23, which appeared to contemplate the appointment of an Acting Chief Judge of the Island during the absence of the Chief Justice on duty as a Judge of the Court of Appeal.

That similiar Acts or Ordinances mutatis mutandis wore enacted in each of the other four Islands. That the Chief Justice was the sole Judge of the Supreme Court of Grenada.

That it appeared to your Lordship that the appointment of an Acting Chief Justice inight vitiate the proceedings of the Court of Appeal, as it might be a question whether the Chief Justice of Grenada would be a member of that Court while some other person was acting in his capacity in Grenada.

That your Lordship would be obliged if we would be so good as to furnish you, at

our earliest convenience, with our opinion upon that question.

We have taken the matter into our consideration and, in obedience to your Lordship's commands, have the honour to

Report

That, in our opinion, the appointment of an Acting Chief Justice during the absence

of the Chief Justice of Grenada, while sitting as a member of the Court of Appeal, will not vitiate or affect the proceedings of the Court of Appeal.

Section 23 of the Act No. 59 of 1857 shows that it was intended that a deputy should be appointed pending the absence of the Chief Justice on duty as a member of the Court of Appeal.

In the above opinion we have assumed that there is power to appoint such deputy; the documents before us do not show in whom such power is vested, but we have little doubt that, as in other cases, provision exists for appointing a deputy, as it is clear the power is assumed to exist from the Act of 1857, and also No. 37 of 1859.

The Right Hon.

Lord Knutsford, G.C.M.G.,

&c. &c.

&c.

We have, &c., (Signed)

RICHARD E. WEBSTER. EDWARD CLARKE.

+

57014.-28. 23,689.