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PUBLIC RECORD OFFICE

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Reference :-

IC.O. 885

15 PUBLIC RECORD OFFICE, LONDON

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

be within the power of the legislative authority of such British Protectorates to make laws similar to the Extradition Acts to provide for the arrest, detention and surrender of Buch criminals.

2. Generally.

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

Report-

That, in our opinion, in the case of Protectorates where His Majesty claims general jurisdiction, and not merely over British subjects, and by virtue of the Prerogative assumes or delegates legislative authority, it would be competent for the legislative authority of the Protectorate to make laws similar to the Extradition Acts, so as to give effect to agreements with other countries for the mutual surrender of fugitive criminals,

We have, &c.,

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

&c.

&c.,

&

R. B. FINLAY, EDWARD CARSON.

23371.

SIR,

No. 88.

(CAPE: NATAL)

LAW OFFICERS TO COLONIAL OFFICE.

Royal Courts of Justice, July 6, 1901. WE were honoured with your commands signified in Mr. H. Bertram Cox's letter of the 21st ultimo, stating that he was directed by you to request our consideration of a question which had arisen with reference to the sentences passed by Tribunals adminis tering Martial Law in the Cape Colony and Natal during the present war.

1867.

That Mr. Bertram Cox was to enclose copies of a confidential report prepared by a Circular, Committee composed of Members from different Departments of the Public Service in Jan. 26, 1866, and of certain rules drawn up by that Committee dated 15th December of that year. Roles, Dec.

That in reply to telegraphic enquiry from Sir A. Milner on the 25th October, 1899, 15, 1866. as to whether those rules, which were sent in a Circular despatch to the Colonies in Circular, January, 1867, still held good, you replied, with the concurrence of the Secretary of State March 12, for War, that those rules still held good, with the addition to paragraph 9 thereof, of 1867. which the Colonies had been informed by a Circular despatch dated 12th March, 1876.

That it would be observed that Article 19 of the rules of December 15th, 1866, contained the statement that sentences of Courts Martial might not avail beyond the term of Martial Law.

That the Courts which had been established under Martial Law in Cape Colony and Natal had passed sentences of imprisonment, the terms of which would undoubtedly, in many cases, extend beyond the period of the existence of Martial Law, and that doubt had arisen whether, on the termination of Martial Law, it would be lawful to detain persons so sentenced in custody, and whether, if so detained, such persons might not successfully apply to the Civil Courts for their release. That in that connexion Mr. Bertram Cox was to call our attention to certain Acts passed by the Colonies of Cape Colony and Natal at pages 110 and 119 of the Blue Book, Cd. 420.

9, W.O. to

That Mr. Cox was to transmit to us copy of correspondence which had passed C.O. to between the Colonial Office and the Secretary of State for War together with a Report by W.O., April the Deputy Judge Advocate General upon the question. That it would be observed that CO., May the Secretary of State for War concurred in the opinion of the Judge Advocate General 28. and Deputy Judge Advocate General that the punishments imposed under Martial Law would be carried out after its termination unless, when peace was made, the release of Martial Law prisoners was made an expressed condition.

That Mr. Cox was further to transmit to us a Report of the Law Officers and Queen's Advocate dated 9th January, 1867,† expressing the opinion that instructions of 15th December, 1866, were not open to any objection in point of law, and of a Report by the Law Officers (Sir John Holker and Sir Hardinge S. Giffard) of 23rd July, 1878,† in which the view was expressed that so soon as "the necessity for so-called Martial Law has ceased all persons who had been imprisoned under it are entitled to immediate release."

That Mr. Bertram Cox was to request us to take the matter into our consideration and to advise you :—

(1.) Whether, on the termination of the existence of Martial Law, persons imprisoned under sentence of Courts established under Martial Law were entitled to release ?

(2.) Whether, in the event of the detention of a prisoner under the sentence of Courts established under Martial Law after the termination of the existence of Martial Law, such person could successfully apply to the Civil Courts for his release?

(3.) Whether legislation was necessary to ensure the detention of persons sentenced under Martial Law after Martial Law had ceased?

(4.) Whether such legislation, if not necessary, was not desirable ?

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

Report-

(1.) That in our opinion, on the termination of the existence of so-called Martial Law, persons imprisoned under such law are entitled to release.

• No. 84A.

9522-25-7/1001 Wt 352 D&S

No. 446 in Vol. 11.

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No. 175 in Vol. III.}

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(2.) In the event of such persons not being released the Civil Courts would have What is called jurisdiction to order such release, and would probably be bound to do so. Martial Law is only the temporary application of force by the Executive under a condition of affairs which renders necessary the abrogation of civil rights is established by law, and when such condition of affairs is at an end parties heretofore affected by Martial Law are restored to their civil rights.

(3.) It follows from the above answers that legislation is necessary to ensure the detention of persons sentenced under Martial Law after Martial Law has ceased.

The Right Hon J. Chamberlain, M.P.,

&c.,

&c

&c.

I have, &c.,

R. B. FINLAY.

EDWARD CARSON.