CO885-(13-15) — Page 733

PUBLIC RECORD OFFICE

|||||||]

Reference :-

ITC.O. 885

15 PUBLIC RECORD OFFICE, LONDON

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

the expiration of the war such person can be tried for treason or for which they have committed.

other offences

any As regards their property forfeiture is not a punishment according to our law since The Forfeiture Abolition Act, 1870" (33 & 34 Viet., cap. 23), except in cases of outlawry, and we gather from the papers that it is not a pubishment according to the law of Natal.

3. This is a question of policy. We may, however, observe that retrospective legislation of this sort is open to the gravest possible objections, and should never be resorted to, except under circumstances which make it necessary for the public safety. No adequate reasons are here suggested.

The same objections would not apply to a retrospective law mitigating the punish- ment, but we doubt whether a law giving power to fine for treason would, having regard to its effect in practice, be justly so described, and if the view expressed by the Attorney-Gerferal for Natal is correct, that the Courts can already substitute fines for death, banishment, or imprisonment, it does not seem that any legislation is

necessary.

4. No general directions can be, given. During the time when martial law is in force, the necessities of the situation and these alone must guide the persons administering it. When martial law has ceased offenders must be dealt with by the

law of the land.

The Right Honourable Joseph Chamberlain, M.P...

&c.

&c.

&c.

We have, &c.

RICHARD WEBSTER. ROBERT B. FINLAY.

my

2937.

No. 13.

(South Africa.)

K

LAW OFFICERS to COLONIAL OFFICE.

SIR.

Royal Courts of Justice, We were honoured with your commands signified in Mr. Lucas's letter of the 23rd

January 25, 1900. instant stating that with reference to the recent seizures of certain German vessels in South African waters he was directed by you to request us to favour you with our opinion upon the following questions.

That on board the German Mail Steamers "Bundesrath" and "Herzog," which were recently seized on suspicion of carrying contraband of war, there were persons who were suspected of being in the service of the South African Republic either as intending combatants, or as conveying secret information. That in the case of the "Bundesrath

on which there was a small party of persons falling within the former description, the vessel was brought into the Prize Court at Durban, but as no contraband of war was discovered on board of her after a prolonged search, she was released, and compensa- tion for her detention was to be paid by Her Majesty's Government.

That the Herzog" carried several passengers (Dutchmen and Germans) connected with the Red Cross Society as well as an expedition organized by an Antwerp Committee, which was not officially recognised by that Society. That secret information was received by Her Majesty's Government that one nurse on board had documents of a startling character concealed upon her person, and that some of the members of the so-called ambulance parties were in reality French and German gunners.

That inasmuch, however, as no contraband of war was found upon the "Herzog" she was not taken into the Prize Court, and instructions were given by the Admiralty for her immediate release, and none of the passengers were searched.

That you would be glad to be informed whether in the event of a neutral vessel being seized and brought into a Prize Court on suspicion of having contraband of war on board of her, carrying persons who were reasonably suspected of being actively or prospectively in the service of the enemy, such persons could properly be detained by the military authorities either as prisoners of war or under the provisions of martial law (if martial law had been proclaimed in the district in which they were found), irrespective of the question whether the vessel was or was not carrying contraband of war.

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

Report—

That we are of opinion that such persons cannot properly be detained under the circumstances mentioned.

enemy.

In order to justify such detention we think that their carriage ought to be one of the charges against the ship, as a vessel is liable, under circumstances which it is not for present purposes necessary to discuss in detail, for carrying persons in the service of the If it is ascertained after the vessel has been brought in as prize that she has, on board persons in the service of the enemy a supplemental charge can be preferred against the ship in the Prize Court before she is released. detained pending enquiry as to their real status. The propriety of preferring such a charge If this be done such persons can be must depend on the circumstances of each particular case. detention of such persons if the charge against the vessel of carrying contraband either But we cannot advise the goods or persons has broken down or is not pressed.

The

persons in the case put to us have been brought within the power of the belligerent only by bringing the vessel into port upon another charge which is not established and under these circumstances we do not think they can be properly detained as prisoners of war, any more than they could have been properly taken out of the vessel in mid ocean.

4753-25-| 1900 W 439 D&S 5

2

W wond int out that the difficulty would be raised not so much by the persons balsas y is as by the neutral nition on board of whose ship they were being carried, and it is for this reason that we think that where it is proposed to take action on the ground that the carrying the persons on board was unlawful proceedings should be taken if the Prize Court.

The Right Honourable J. Chamberlain. M.P..

&c..

&e..

Ke.

We have, &r.,

RICHARD E. WEBSTER. ROBERT B. FINLAY,