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PUBLIC RECORD OFFICE

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Reference :-

C.O. 885

15 PUBLIC RECORD OFFICE, LONDON

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

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should that be done, it was possible that an undesirable conflict might arise between the civil courts of the Cape Colony and the authorities administering martial law.

That in the case ex parte D. A. Marais, reported in Law Reports, 1902, Appeal Cases, at page 109, the Judicial Committee of the Privy Council decided that where war actually prevailed the ordinary courts had no jurisdiction over the action of the military authorities. But that, assuming the South African War to have terminated, it might be doubted whether the civil courts would not have jurisdiction to call in question the propriety of the action of the military authorities, on the ground that no state of war existed, but only a state of more or less disturbance, and that those courts liad jurisdiction to inquire whether aby sufficient danger to the public safety actually existed, and whether any measures taken under martial law were in fact justifiable. That in those circumstances a conflict between the military authorities and the civil courts on questions which it would be most urdesirable to raise would be extremely probable, and might become inevitable.

That with regard to the sanction by local Legislatures of proceedings taken under martial law, another difficulty arose. That prisoners sentenced to penal servitude in Bermuda were conveyed on the high seas from South Africa to that Colony, and that other prisoners sentenced to penal servitude, without stating the special place of confinement, had been conveyed to Bermuda and St. Helena, and that it was conceived that no Act passed either by the Cape Legislature, or by the Legislatures of Bermuda or St. Helena could give legislative authority to acts done outside the territorial waters of those Colouies, and that technically the captain of the ship who conveyed the prisoners from South Africa to Bermuda or St. Helena might be liable to an action for illegally detaining them on board ship.

That you were aware that an Act of the Imperial Parliament could give protection under those circumstances, but that it was essential to avoid, if possible, inviting the Imperial Parliament to legislate, and that you considered that the risk of action being taken against the captain in the manner, and for the reason described, might perhaps be neglected.

That a further question arose as to prisoners of war. That it would not be possible or desirable to return them to South Africa immediately, and that it was proposed to return them by degrees and in small numbers, and possibly, in some cases, to prohibit the return of certain notoriously disaffected prisoners altogether.

That it would be remembered that, besides burghers of the late Republics, there were, among the prisoners of war an appreciable number of Germans, Hollanders, and other foreigners.

That the question therefore arose whether any-and what-legislative authority was necessary to carry out that policy, and by what legislative authority any enact- ment which might be found necessary should be passed.

That Mr. Bertram Cox was accordingly to request us to take the above matters into our consideration and to advise you :

1. Whether any-and what-legislation was necessary to legalise the proceedings taken under martial law in the Colònies referred to ? Whether the legisla- tion already passed by those Colonics, and in particular by Natal, was sufficient, and, if not, what further legislation was necessary, and what form such legislation should take?

2. What course should be taken with regard to prisoners, sentenced either to penal servitude in Bermuda or to penal servitude without staring the place of con- finement. who had been conveyed to Bermuda or St. Helena? Whether any legislation was necessary, and, if so, of what nature, and by what legislative authority any necessary enactment should be passed?

3. Whether, if martial law was continued in the Cape Colony after the conclusion

of

peace. the civil courts might discuss the question of the necessity for its continuance, and whether it was possible that a conflict of authority might arise in that case between the military authorities and the civil courts, and, if so, what legal means could be taken to avoid such conflict?

4. Whether the course proposed to be taken with regard to prisoners of war could be justified on grounds of International Law, and whether any municipal legis- lation was necessary to carry out such policy, and, if so, by what legislative authority the necessary enactments should be passed?

5. That you would be glad to be further favoured with any general observations as to the matters above referred to, which, in the consideration of those most important matters, might occur to us.

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We have considered the questions which have been submitted to us, and, in obedience to your commands, have the honour to

Report.

1. That we are of opinion that legislation is necessary for this purpose. Although acts done inad fide in the administration of martial law during the existence of a state of war are, in our opinion, lawful at common law, there is an absence of authority on the subject, and it is certain that a number of actions would, in the absence of an Act of Indemnity, be brought against those who have bren The sentences passed by courts- concerned in the administration of martial law.

martial would, in our opinion, cense to be of effect whon martial law comes to an end. We therefore think that legislation giving an indemnity to those who have been concerned in the administration of martial law, and confirming the sentences passed by

proper and necessary. courts administering martial law, is

2. In the case of prisoners in penal servitude in Bermuda or St. Helena, under sentence passed by courts administering martial law, we think complete protection can be afforded only by an Act of the Imperial Parliament. Acts of the local Legislatures would not cover what has been done on the high seas in the course of the transmission of these prisoners. We observe that it is considered that the danger of actions in respect of what was done upon the high seas may be neglected, and Acts of the Legislatures of Bermuda and St. Helena would cover what has been done there; but there remains the difficulty which apparently exists in passing an Act, at a sufficiently early date, through the Legislature of the Cape of Good Hope.

3. In the case supposed, the civil courts might discuss the necessity for the continuance of martial law, and very awkward complications might ensue. The danger of such a conflict can be avoided only by legislation.

4. The course proposed with reference to the return of the prisoners of war to South Africa may be justifiel by the right of the British Government to exclude from its own territory persons whose presence might endanger its peace. When the war ceases, the prisoners of war are, subject to any special terms of peace, entitled to their freedom within a reasonable time, but it is open to His Majesty's Government to take steps to prevent their returu to South Africa except under conditions demandel by the public safety, and they should not be permitted to return in such numbers, or at such times, as would menace the public tranquillity. For this purpose we think that legislation may be desirable. Local legislation would be sufficient, but if it is desired to exclude these prisoners from the Cape, an Act of the Imperial Parliament may be desirable in the present circumstances of that Colony.

5. Under all the circumstances, we think that Imperial legislation is expedient. It might have unfortunate effects if prisoners-under sentence by courts administering martial law-were set at liberty on writs of habeas corpus issued by the civil tribunals on the restoration of peace, while actions were brought to recover damages froin Lord Kitchener and the officers by whom martial law had been enforced, and there appears to be no likelihood that the necessary legislation can, so far as the Cape Colony is concerned, be carried through locally in time to avoid these results. If it were possible, local legislation woull bo niuch preferable, and liability for acts done on the high seas might perhaps bo neglected, but such legislation does not appear to be possible in the Cape Colony.

We have, &c.

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

&c.,

&c.

R. B. FINLAY. EDWARD CARSON.