CO885-(13-15) — Page 369

PUBLIC RECORD OFFICE

C.O. 885

Reference :-

14 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRAPH-NOT TO

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"Does Her Majesty possess jurisdiction at Swarra Kunda, and if so does that jurisdiction extend to the trial in a British Court of a native charged with the manslaughter of another native at that place?"

I answer that Her Majesty does possess jurisdiction at Swarra Kunda, and that that jurisdiction extends to the trial of a native charged with the manslaughter of another native at that place.

The Supreme Court also asks-

"If the Court has jurisdiction can it exercise such jurisdiction without the inter- vention of any local legislation?" This, however, is a question of law, not a question of fact as to the existence or extent of Her Majesty's jurisdiction in a foreign country. I am consequently not empowered by the Act of Parliament to answer this question.

(Signed) Secretary of State for the Colonies,

April 1894.

(Initialled) C. R.

18/4/94.

J. R.

SIR,

(No. .)

(DRAFT.)

GAMBIA.

Downing Street, April 1894. I DULY received your Despatch, No. 15, of the 14th of February last, on the subject of the power of the Supreme Court to try a native who was accused of homicide at Swarra Kunda, a place which you stated to be about 30 miles from the Colony, and within the Protectorate, and you asked two questions, which, after consultation with the Law Officers of the Crown, I was able to answer in the telegram which I sent on the 15th March in the following words :-" Dazzles fifteen enjoins both questions alcohol paytrel present case. Datolite." Which when translated means " Referring to your Despatch 15 of 11 February, both questions answered in the affirmative as regards present case. Despatch follows by mail."

2. The existence of a protectorate is a question of fact, but where it can be shown that a particular territory has come under Her Majesty's protection, whether by written convention (treaty or grant), or with or by the tacit acquiescence (usage or sufferance) of the inhabitants, then there is no doubt that Her Majesty possesses jurisdiction within that territory; and by virtue of the Foreign Jurisdiction Act, 1890. (which replaced former Acts on the same subject) may by Order in Council create such Courts and provide such other machinery, judicial and administrative, as the circum- stances of the particular Protectorate render necessary for the due exercise of that jurisdiction.

3. You will understand that the Foreign Jurisdiction Act does not create the jurisdiction, it only provides machinery for giving effect to a jurisdiction which already exists; by whatever means it may have been acquired whether (in the words of the preamble) by treaty capitulation, grant, usage, sufferance, or other lawful means. and you will observe that by section 1 of the Act Her Majesty may enjoy and exercise such jurisdiction where it exists in the same and as ample a manner as if acquired by the cession or conquest of territory.

4. I am advised that the meaning of these words is, that in territory acquired by cession or conquest Her Majesty may make laws by Order in Council; and therefore when she possesses jurisdiction in a foreign country she will in like manner proceed by Order in Council for giving effect to it. The words are used in distinction to territory acquired by settlement in which laws are made by Parliament alone, or by persons acting under powers conferred by Act of Parliament. The Legislative Council of the Gambia furnishes an instance of both methods. So far as regards the Settlement (or as it is now called the Colony) of the Gambia the Legislative Council makes laws. under the powers delegated to it by Letters l'atent which Her Majesty was authorised by Parliament to issue for that purpose. This authority was originally contained in the Act 6 & 7 Vict. c. 13. enlarged by the Act 23 & 24 Vict. c. 121; both of which

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Acts have since been replaced by the British Settlements Act, 1887, 50 & 51 Vict. c. 54, under which Act the existing Letters Patent of the 28th of November 1888 were issued.

5. As regards the Protectorate, the Legislative Council derives a power of legislation from the Order in Council of 23rd November 1893 which Her Majesty has made, under the Foreign Jurisdiction Act, 1890. Under that Act Her Majesty might make by Order in Council, any laws that might be found desirable for regulating the exercise of her jurisdiction in the Protectorate, but she has been pleased while retaining her power to make such laws, at the same time to delegate to the Legislative Council a similar power.

This delegation is effected by the Order in Council of 23rd November 1893, but that instrument is also as regards Clause 4 an independent legislative act by Her Majesty herself. It was open to her to have created by Order in Council courts of justice within the Protectorate, but instead of doing so she has, in exercise of the special authority given to her by section 9 of the Act, conferred upon the Courts of the Colony all the judicial authority and jurisdiction which she might have conferred upon specially created Courts sitting within the Protectorate.

6. You will consequently perceive that the Supreme Court derives from the Queen herself its power to exercise jurisdiction in respect of matters arising within the Protectorate; and that such jurisdiction may be exercised without the intervention of the local legislature.

7. As regards the question whether the Court has jurisdiction to try the particular prisoner now under discussion the answer will depend upon whether the Queen possesses de facto jurisdiction in Swarra Kunda. The territories bordering on the River Gambia, including Swarra Kunda, lie within the slave-trade zone as defined in the General Act of the Brussels Conference, and I am advised that in any territories within that zone which have come under British Protection Her Majesty may exercise jurisdiction over (a) British subjects; (b) foreigners who are the subjects of one of the Powers which signed that General Act; (c) Natives who have accepted Her Majesty's protection and jurisdiction.

8. I was able to inform the Law Officers that the territory over which the alleged Protectorate extends is ruled by various Alcaides; that these Alcaides are not subject to any superior power, that the assumption of the alleged Protectorate has been acquiesced in by France, which has interests in the adjoining territory, and by the Alcaides themselves, that the British Government has interfered by its Commissioners in the Government and for the good order of the country, and that this interference has been acquiesced in by the Alcaides and in particular the Alcaide of Swarra Kunda. In addition to these facts your telegram of March 8th added the further fact that the inhabitants of Swarra Kunda regard Her Majesty as their Sovereign, and seeing that the Alcaide had himself invoked the aid of Her Majesty's Representative, the Law Officers were of opinion that the Secretary of State would be justified in considering these facts as establishing that Her Majesty has de facto jurisdiction in the territory and over the matter in question within the meaning of the Act of 1890, and that the Supreme Court of the Gambia may try the native in question.

9. accordingly on the 15th of March telegraphed to you as stated at the beginning of this Despatch, and I concluded that the trial would proceed in the regular course. Owing to the pressure of business I was unable to send at once the Despatch promised in my telegram, but it had been partly prepared when I received an applica- tion from the Supreme Court purporting to be made under the fourth section of the Foreign Jurisdiction Act, stating further facts as to the nature of the Queen's authority in Swarra Kunda, and asking for my decision upon two questions affecting the Jurisdiction of the Court, viz. :-

Has the Supreme Court of the Gambia jurisdiction to try the prisoner?

If the Court has jurisdiction, can it exercise such jurisdiction without the intervention of any local legislation.

These questions are substantially the same as those answered in my telegram of the 15th March, and as that telegram would have arrived after the case had been adjourned for the purpose of making this application, I felt in doubt whether any further answer was required. But your telegram of the 9th instant shows that the Court desires formal answers to these questions.

10. I have accordingly submitted to the Law Officers the document transmitted by the Supreme Court, and I am advised that the second question does not come within the terms of the fourth section of the Foreign Jurisdiction Act, 1890, inasmuch as it raises a question of law as to the powers of the Court, and not of fact "as to the existence or "extent of the jurisdiction of Her Majesty in a foreign country," such as the above