CO885-(13-15) — Page 376

PUBLIC RECORD OFFICE

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Reference :-

C.O.885

| LUFTRIGTER ETTE

14 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- |

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Mr. Bramston was to request us to take the papers into our consideration, and to favour your Lordship with our opinion.

1. Whether a Deputy appointed under Article 13 of the Lotters Patent was the person for the time being lawfully administering the Government within the meaning of the Interpretation Act, 1888.

2. Whether the Governor can, under Article 13 of the Letters Patent, empower a Deputy to exercise for him, and on his behalf, powers, or discharge duties, vested in or imposed on him by statutes of the Colony.

3. Whether Acts done by a Deputy for, on behalf of; the Governor in the exercise of powers or in discharge of duties vested in or imposed on the Governor by statutes of the Colony, and specified in the instrument appointing the Deputy, are to be deemed to be done by the Governor.

4. Whether any, and what, amendments of the Interpretation Act or of the Letters Patent are necessary or desirable in order to give validity to acts of a Deputy in exercise of the statutory powers or functions of the Governor.

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

Report-

That in our opinion it is not necessary to amend the Interpretation Act or the Letters Patent, but in the instrument appointing a Deputy under clause 13 all the powers conferred on the Governor under Colonial Statutes which are intended to be exercised by the Deputy should be specified.

If that is done he will be the person administering the Government of the Colony within the meaning of the Interpretation Act. We think that he is so within the meaning of the Letters Patent.

The Most Hon.

The Marquess of Ripon, K.G.

&c. &c. &c.

We have, &c.

(Signed)

JOHN RIGBY.

R. T. REID.

11575.

No. 66.

(SOUTH AFRICA.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

Royal Courts of Justice, July 3, 1894. We were honoured with your Lordship's commands signified in Mr. Fairfield's letter of the 28th ultimo stating that he was directed by your Lordship to acquaint us that Her Majesty's Government desired to be favoured with our advice on the question (which had arisen out of the so-called "Commandeering" of British subjects in the South African Republic) whether a State can, consistently with International law and comity, compel the subjects of another State who reside within its borders to render military service in maintaining the authority of the Government, or to pay a war tax in lieu of such service.

That the facts connected with the incident now occurring in the South African African Republic were set forth in the proof prints of recent correspondence.

(South)

No. 470, London

That the only treaty stipulation affecting British subjects in that behalf was that contained in Article XV. of the Convention of London, whereby British subjects, in ven common with other persons, not natives of South Africa, who settled in the territory tion 1884. between 1877 and 1881 were exempt.

France.

That the six States noted in the margin were known to have obtained a perpetual Portugal and total exemption for their subjects, and at the same time to have accorded reciprocal Belgium. exemption to burghers of the South African Republic. That it was also believed that many. the Netherlands had such a treaty with the South African Republic, although no copy of 1ây. it appeared to be recorded in the archives of the Colonial Office, or the Foreign Office. Switzer-

That, as would be seen from the recent correspondence there was a latent difficulty land. in the way of negotiating with the South African Republic on the basis of reciprocal treatment, although, notwithstanding, Sir Henry Loch seemed to be making an effort to do so.

That

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That, as would be gathered from the papers, the question was not a new one. it arose somewhat prominently in relation to the American Civil War, and again in the Transvaal itself, before its temporary annexation to the British Crown.

Mr. Fairfield enclosed with his letter the opinions given by the Law Officers of the day to the Secretary of State for Foreign Affairs at the time of the American War. He further stated that the opinion dated the 31st of July 1860 had evidently formed * the basis of Lord Russell's Despatch of the 4th of July 1861, which was quoted by your Lordship in the Despatch to Sir Henry Loch of the 8th ultimo.

That two reports of the Law Officers of 1876, in regard to the earlier Transvaal case, were also enclosed, as well as a copy of the Blue Book C. 1748, which contained the Despatch from Lord Carnarvon of the 22nd of May 1876, wherein he gave expression to the view contained in the first of those opinions.

That, as bearing on the question whether, in the abstract, a State has the right of exacting military service from aliens, it was worth noting that the States of the world were constantly abandoning that right by reciprocal arrangements in favour of one another's subjects, which seemed to afford evidence that it was admitted, by common consent, to exist.

That this country had made such treaties, and that a treaty was now under discussion with Japan which contained such a stipulation, and in relation thereto, it was mentioned that a difficulty had been felt as to the adhesion to it of those British Colonies, for such there were, which had passed laws based on the principle that aliens might be required to render service in the local armed corps. But that the Japanese Government had expressed its willingness to waive the objection and to accept the adhesion of any particular Colony, without insisting on an amendment of its local law. That the laws in question were, rightly or wrongly, left to their operation on the assumption that there was no doubt as to the competence of a country to impose such duties on aliens. That a list of them was noted in the margin of Mr. Fairfield's letter, but that the only one with which it seemed necessary to trouble us was the Cape Act, No. 7, of 1878, in connexion with which it might be mentioned that at the time of the Basuto War, the Cape Government called out German subjects under its authority, and

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