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R

8233.

No. 128.*

(SOUTH AFRICAN CONSTABULARY.)

OPINION BY DEPUTY JUDGE ADVOCATE-GENERAL.

[Case of Trooper J. Trueman: construction of certain sections of the Army Act which deal with the powers of Colonial Legislatures.]

1. In my opinion the conviction of Trueman on each of the four charges against him was valid. The convictions on the first two charges (Section 6 of Army Act) do not appear to be questioned by the Colonial Office, and I agree with their view that the sentence is a legal sentence as founded on these two charges alone.

2. As to the third and fourth charges (under Army Act, Section 40), I differ, with much respect, from the view that Trueman could not be tried by Field General Court Martial upon those charges, because the Proclamation of Lord Roberts (No. 24 of 1900) purports to deal with a similar class of offence (see paragraph 8 and item 18 in the Schedule), and, that being so, the Army Act is ousted by the proviso to Army Act, Section 176 (3). The proviso in question appears to me to be applicable only to the case of self-governing colonies having legislatures of their own, such as the Australian Colonies, and that the proviso is intended to carry out the constitutional practice by which the Imperial Parliament does not legislate in such a way as to infringe upon the legislation of such colonies as are referred to above. The proviso has, in that view of it, no application to a colony while it is in the stage of being governed by proclamations emanating from an Imperial administrator, and consequently is not applicable in the case of the South African Constabulary and the proclamation No. 24 of 1900.

3. Apart from the general question of the application of the proviso, it is to be noticed that the proviso, when carefully read, does not in fact purport to oust the Army Act," but only states that the application of any Colonial Act shall not be affected, i.e., the Colonial law is to continue applicable. It would therefore seem that a concurrent jurisdiction is intended, with possibly some limitation to the effect that, under the Army Act, nothing is to be done in contravention of the Colonial law.

4. Reverting to the particular case of the South African Constabulary it is to be noticed that paragraph 17 of the Proclamation expressly preserves some other and concurrent jurisdiction, and an examination of the offences triable under the Proclamation (which are without exception "military" offences) points to the conclusion that it is the jurisdiction of Courts Martial under the Army Act that is intended to be preserved.

5. I have consulted the Judge Advocate-General and he endorses the views expressed above,

6. I should add that if the Colonial Office wish to raise the general question of the position of Colonial troops in regard to the Army Act, it would be more convenient if the matter were discussed at large and not in relation to this particular case. Upon any such general discussion there are several considerations which merit notice, which it does not seem necessary to put forward on the present occasion.

22nd February, 1902.

ERNEST BONUS, D.J.A.

PUBLIC RECORD OFFICE

19

Reference :--

mmimmim C.O. 885

15 PUBLIC RECORD OFFICE, LONDON

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

SIR,

4755.

COLONIAL OFFICE to WAR OFFICE.

Downing Street, January 31, 1902.

I AM directed by Mr. Secretary Chamberlain to transmit to you, to be laid before Mr. Secretary Brodrick, the accompanying copy of a statement respecting the charges against C. 1887 Trooper J. Trueman, South African Constabulary, who is now detained in the Military prison at York.

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