CO885-(13-15) — Page 17

2620.

PUBLIC RECORD OFFICE

Reference :-

C.O.885

13 PUBLIC RECORD OFFICE, LONDON

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

In compliance with the request contained in Sir Robert Herbert's letter we have the honour to

Report

That it is, in our opinion, very doubtful whether, without further legislation by the Imperial Parliament, Her Majesty can, by Order in Council, constitute or create a Court of Appeal in one Colony to deal with cases on appeal from another Colony.

The jurisdiction contemplated by 6 & 7 Victoria, chapter 13, seems by the terms of the Act to be intended to be exercised within the possession in relation to which the Order in Council is made. The later Act, 23 & 24 Victoria, chapter 121, in our judgement, refers to Courts of first instance, or at most to Courts of first instance and Courts of Appeal within the same possession.

The necessity for the passing of the Statute 29 & 30 Victoria, chapter 87, in the somewhat analogous case of the Foreign Jurisdiction Act, supports the view that statutory authority would be necessary in this case.

Instead of the modes proposed in the covering letter, we think the better course would be, in the absence of further legislation, to establish a Court of Appeal in each Colony, and to make the Judges in each Colony Judges of first instance and of appeal in both Colonies.

We see no legal objection to this course, assuming that there are no local Ordinances which will require modification.

The Right Hon.

We have, &c.,

(Signed) RICHARD E. WEBSTER.

EDWARD CLARKE.

Sir Henry Holland, Bart., M.P.,

&c.

&c.

&c.

No. 84

C

(SOUTH AFRICA.)

LAW OFFICERS to COLONIAL OFFICE.

SIR,

Royal Courts of Justice, WB were honoured with Mr. Bramston's letter of the 22nd ultimo,

February 8, 1887. stating hat he was directed to request our consideration of the accompanying documents:-

(i.) Copy of the Convention between Her Majesty the Queen and the South African Republic, signed at London on the 27th of February 1884.

(ii.) Copy of a letter from Sir Hercules Robinson to Mr. Stanhope, dated 12th of October 1886, covering a memorandum on Swaziland.

That it would be seen by Article 2 of the Convention that the South African Republic undertook that it would do its utmost to prevent any of its inhabitants from making encroachments upon lands beyond its boundaries. and would appoint Commissioners to guard against irregularities and all trespassing over boundaries, and that Her Majesty's Government would, if necessary, appoint Commissioners in the native territories outside the eastern and western boundaries of the Republic to maintain order and prevent encroachments.

That further, by Article 12 of the Convention that the independence of the Swazis, within the boundary line of Swaziland, as indicated in the first Article of the Convention, would be duly recognised. That Swaziland was a native territory adjoining the South African Republic on its eastern boundary, and that its king and people were allies of and friendly to the English.

That it would be seen from paragraph 4 of the memorandum that the inhabitants of the South African Republic were making encroachments upon Swaziland, and that there was reason to believe that the Republic would not take measures to prevent those encroachments; and that it also appeared from paragraph 10 of the memorandum, that unless England intervened an independent republic of gold miners and inhabitants of the South African Republic might probably be established, or that Swaziland would eventually be annexed by the South African Republic.

That it was assumed that Her Majesty, if so advised, might under Article 2 of the Convention, intervene in the affairs of Swaziland, at any rate so far as to appoint Commissioners to reside there for the purpose of maintaining order and preventing encroachments.

But that several questions arose upon Article 12 of the Convention, read in connexion with Article 2, and that Mr. Bramston was to request that we would be good enough to advise you upon them, viz. :-

(i.) Whether (a) the omission by the South African Republic to prevent its inhabitants from making encroachments upon Swaziland; or (b) the establishment of an independent republic in that country by persons, some of whom were, and others were not, inhabitants of the South African Republic; or (c) the annexation of that country by the South African Republic, would be a breach of the Convention on the part of that Republic.

(ii.) Whether Her Majesty was in any degree, either legally or equitably bound, and if so, how far bound, by the terms of the Convention, to intervene actively for the purpose of preserving the independence of Swaziland against the encroachments of the inhabitants of the South African Republic, or against the establishment of an independent republic in that country, or against its annexation by the South African Republic.

(iii.) Whether it would be competent to Her Majesty without committing a breach of Article 12 of the Convention to take Swaziland under Her protection, and to exercise such authority there as was usual in other pro- tected territories of South Africa. That speaking generally such protection amounted to the declaration that the country was under our protection, and

50089.-9. 25.-9/87.

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