CO885-(13-15) — Page 400

PUBLIC RECORD OFFICE

Reference :-

wwimmin

PC.O.885

14 PUBLIC RECORD OFFICE, LONDON

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

(Confidential.)

GOVERNOR SIR B. GRIFFITH,

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(DRAFT.)

SIR,

I RECEIVED in due course Mr. Hodgson's Confidential Despatch of the 14th of

Downing Street, January 1895. February last, on the subject of Her Majesty's jurisdiction in the Protected Territory of Kwahu. Similar questions were at the time under consideration with reference to other parts of Africa, notably to Matabeleland, in which the power of the Ruling Chief Lobengula had recently been broken by force of arms, and the death of that Chief had followed. I accordingly deferred the answer to Mr. Hodgson's Despatch, which I regret has since unfortunately been overlooked.

2. The result of the events in Matabeleland was to leave that country without a native ruler. The country was under Her Majesty's protection, it was in the hands of a British Company, and no authority existed except that of British officers. therefore necessary that Her Majesty should take measures to make her protection effective, in the interests of all persons within the country, and for that purpose. It was should provide by Order in Council for the administration of the country, while not assuming the sovereignty of it. This has accordingly been done by Order in Council dated 18th July 1894, of which a copy is enclosed for your information, and the administration of affairs is by it delegated to the British South Africa Company.

3. The principle which governs these cases is that the existence of a protectorate in an uncivilized country carries with it a right on the part of the Protecting Power to exercise within that country such authority and jurisdiction-in short, such of the attributes of sovereignty-as are required for the due discharge of the duties of a protector for the purpose not only of protecting the natives from the subjects of civilised Powers, and such subjects from the natives and from each other, but also for protecting the natives from the grosser forms of ill-treatment and oppression by their rulers, and from the raids of slave dealers and marauders. question of fact, what are the powers which in any particular case it is proper for the It then becomes a protector to assert?

4. This principle has become more fully recognised during the recent develop ment of affairs in Africa, and applying it to the question raised by the Chief Justice in the case transmitted in your Confidential Despatch of the 10th of February 1893, I do not, on further consideration, feel satisfied with the answer which I returned in my Confidential Despatch of the 30th May, 1893. It is true that the treaty with Kwahu does not in express terms confer legal jurisdiction, but it creates a protec- torate, and one of the results of that protectorate is that Her Majesty acquired the right of establishing Courts of Justice within its borders, and of administering justice so far as circumstances may render it desirable that she should do so.

5. As I pointed out in my Confidential Despatch of October 19, 1893, the com- bined effect of the Order in Council of August 6, 1874, and of section 12 of the Supreme Court Ordinance of 1876, has been to vest in the Supreme Court all the civil and criminal jurisdiction exercisable by Her Majesty in the Protectorate; and it appears to me that it would have been more correct to answer the question of the Chief Justice by saying that the Supreme Court does possess civil and criminal jurisdic- tion-in Kwahu. And, indeed, my Despatch of October 19th, 1893, pointed to the same conclusion. But the existence of this jurisdiction does not necessarily oust the jurisdiction of the Native Courts, though I should hope that the purer administration of the British Court will in time of itself supplant the methods of the Native Courts of which Mr. Phillips draws so black a picture in his report which Mr. Hodgson transmitted in his Confidential Despatch of February 3, 1894.

6. How far it may be judicious in any given cases for the Court to decline to exercise its jurisdiction is another matter. States there can be no question, for no other court is capable of dealing with them. As regards the subjects of civilised As regards the natives the exercise of jurisdiction by the Supreme Court, or by Commissioners under the Supreme Court Ordinance, must depend upon circum stances; but the policy of the Government and of the courts should be to assert juris- diction whenever it is possible to do so, and to encourage the natives in every way to seek redress in the British Courts. If, therefore, natives apply to a court for sum- monses they should, I consider, be granted, unless there are special circumstances which render such a course undesirable in any given case-as in the case of Abram r. Abankwa, where the King specially desired that the matter should be settled by native jurisdiction.

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7. In the case of the murderer Esono, to which Mr. Hodgson refers in the Despatch under acknowledgment, I feel no doubt that the case was properly tried in the Supreme Court: the accused was sent down by the King with a request that he might be tried, and under such circumstances the Court could hardly have refused to exercise its jurisdiction.

8. I agree in thinking that it would be desirable to extend the Native Jurisdic- tion Ordinance to Kwahu, if it were possible to do so with effect. But in the present condition of the country I do not feel satisfied that the King and his Chiefs would be willing to accept its provisions, especially those of section 18, which would have the effect of depriving them of their existing jurisdiction; and it is obviously undesirable to endeavour to apply that Ordinance to a territory before that territory is ready to receive it. You should, however, keep the subject in view, in the hope that circum- stances may alter and that its introduction may become practicable and effective.

9. In conclusion I have to inform you that the Draft of this Despatch has been submitted to, and approved by, the Law Officers of the Crown.

R. T. R.

F. L