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The question is one of administration by the Federal Government, and for legis lation, if necessary, by the Dominion Parliament, and not for the interference of the Crown.

•

We have, &c.,

R. B. FINLAY. EDWARD CARSON.

The Right Honourable J. Chamberlain, M.P., &c.,

&c.,

&c.

Me

14471. S

No. 120.

(South Africa.)

LAW OFFICERS to COLONIAL OFFICE,

Royal Courts of Justice,

PUBLIC RECORD OFFICE

Reference :-

TTC.O. 885

15 PUBLIC RECORD OFFICE, LONDON

December 16, 1901.

[Legislation necessary to give legal effect to sentences of banishment on Boer leaders.]

SIR,

E were honoured with your commands signified in Mr. H. Bertrain Cox's letter of the 30th ultimo stating that he was directed by you to request our consideration of certain questions which had been raised with regard to the legislative measures necessary to give legal effect to the sentences of banishment referred to in Lord Kitchener's Proclamation of 7th August.

That you expressed the opinion in the House of Commons on 15th August that that Proclamation was of the nature of a warning to certain persons that if they did not surrender by 15th September proceedings would be taken against them, and that in a confidential despatch to Lord Milner dated 5th October you described it as an "announcement of intention." That it would seem, therefore, that the notices issued by Lord Milner con- taining lists of persons who had come within the provisions of the Proclamation must be so intended and construed, and could not be held to have any legal validity against the persous named, and that the question therefore arose what form the requisite legislation should take.

That Lord Milner under his Commission of 8th October, 1900, by which he succeeded to Lord Roberts who was by a Commission of the 4th July, 1900, appointed Adminis. trator of the Transvaal (and also, by an earlier similar Commission, Adininistrator of the Orange River Colony), with power to make such laws as he might deem necessary for the peace, order and good government of the territories, would appear to have been invested with the powers of legislation which accrued to the Crown in conquered territory.

That in that connexion Mr. Cox was to refer to our Reports of the 17th and 18th May, 1900. That it would appear from paragraph 4 of the latter Report that we considered that the Administrator's acts-although valid-might possibly be questioned. That it was clear from Lord Mansfield's judgment in the case of Campbell v. Hall (2 Cowper's Reports, p. 209) (20 Howell's State Trials 239) that the power of legislation which could be exercised by the Crown in conquered territory was not unlimited. That the Crown, it was there said, "cannot make any new change contrary to fundamental principles," and various examples-not exactly parallel to the present case-were quoted, and many other instances," it was added, "might be put.'

"

That there was no doubt that in this Country the Crown had no power to banish. That according to Blackstone, "no power on earth except the authority of Parliament can send any subject of England out of the land against his will, not even a criminal; for exile and transportation are punishments at present unknown to the Common Law," and that he went on to say "how benignly and liberally construed for the benefit of the subject" the law was, an observation which from the attitude of the Privy Council in the case of Sprigg v. Sigcau (though the questions involved there were different) would appear still

to be true.

of

That it would appear from Sir W. Harcourt's letter published in the "Times" 8th November, where he spoke of a Bill in the Imperial Parliament, that he was of opinion that legislation by the Administrator banishing certain persons without trial would be contrary to the fundamental principles referred to by Lord Mansfield.

Nos. 36A and 36B.

10514-25-12/1001 Wt 352

D & 8 6

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