CO885-(15-16) — Page 256

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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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"naturalised. The only papers which can be found show that he was commandeered for war taxes in September, 1899; he wired to State Secretary asking if this was legal. State Secretary repeated telegram to Landrost, Wolmaranstad, for further in- "formation: reply came that Enwright was commandeered to pay "five pounds, but had not done so, and had been dismissed by his "ohief for other reasons, and that he had gone across the border

on 2nd October."

"

OPINION.

"W. H. Moor, "Assistant Colonial Secretary."

We are of opinion that there is not sufficient evidence to justify a prosecution in either of these cases.

A. Enright's Case.

The only evidence of nationality rests upon his own statement, part of which is that he became a burgher before the war broke out.

The only evidence of Enright's being in arms rests upon admissions made by him. We think that these admissions would not supply the absence of the evidence required by the statute of two witnesses of an overt act or acts of treason.

B. Hodgson's Case.

Hodgson's naturalisation is said to have taken place after the war began, but there is at present no evidence to prove the documents, and it appears very doubtful whether such evidence could be obtained.

The only other evidence appears to rest on Sergeant Deddon's statement as to Hodgson's admissions, and in view of the statute this is not sufficient.

2. The absence of evidence makes it unnecessary to enter at length upon the other considerations which arise upon our instructions.

We ought, however, to add that the long detention of these men as prisoners of war, especially after the fact that their British nationality had, at least in one of the cases, been brought to the knowledge of the authorities, would tell strongly in their favour if evidence could be secured sufficient to put them on their trial; and that as both had been long settled in South Africa, their removal to this country, if followed by their trial for a capital offence, would probably be made ground for a charge of breach of faith, in view of the terms of the statement handed by Lord Milner to the Boer delegates as to the trial of rebels.

3. We advise against proceedings in either of these cases.

Temple, February 3, 1903.

R. B. FINLAY.

EDWARD CARSON.

5367

No. 177.

(STRAITS SETTLEMENTS.-Cocos ISLANDS.)

LAW OFFICERS to COLONIAL OFFICE.

[Questions connected with the government of the Cocos or Keeling Islands.j

Royal Courts of Justice,

SIR,

February 7, 1903. We are honoured with your commands, signified by Mr. Lucas in his letter of the 7th January last, stating that he was directed by you to request our report upon certain questions which had arisen in connection with the government of the Cocos or Keeling Islands.

That the early history of these Islands, which were acquired by settlement, would be found in the report of Mr. E. W. Birch, who visited them in 1885. That it appeared from that report and from the recital contained in the Letters Patent of the 10th of September, 1878, that they were formally taken possession of on behalf of the Crown on the 31st of March, 1857.

That the Letters Patent of the 10th September, 1878, appointed the Governor of Ceylon to be Governor of the Cocos or Keeling Islands, and, amongst other pro- visions, contained a clause purporting to authorize and empower him to make rules and regulations for the government of the Islands. That these Letters Patent were revoked by Letters Patent of the 1st of February, 1886 (which were still in force), appointing the Governor of the Straits Settlements to be Governor of the Cocos or Keeling Islands, but otherwise producing, mutatis mutandis, the provisions of the previous Letters Patent.

That on the 6th of November last a telegram was received in your Department from the Governor of the Straits Settlements reporting the commission of a murder in the Cocos Islands, and enquiring whether he could send a judge to try the accused without a jury at Cocos, under Article IV. of the Letters Patent, or whether he should annex the Islands to the Straits Settlements under Article VI. of the Letters Patent. That on the 7th of November he was directed, by telegraph, to make a regulation under Article IV. of the Letters Patent of the 1st of February, 1886, providing that the Governor might make an order for the trial in the Straits Settlements of any person accused of a crime committed in the Cocos Islands, and for the removal of such person and all the witnesses to the Straits Settlements for the purposes of trial. That the Governor was further directed, after making the above regulation, to make an order under it and bring the prisoner and witnesses to the Straits Settlements and hold the trial there.

That in pursuance of these directions the Governor, on the 11th of November, made certain regulations for the peace, order and good government of the Cocos or Keeling Islands.

That on the 20th of December a telegram was received in your Department from the Governor reporting that at the trial of the prisoner the Chief Justice had ruled that the Supreme Court had no jurisdiction to try the case, and ordered the prisoner to be discharged on the ground that the regulations made by the Governor were in- valid, as the Crown had no power to legislate for Cocos Islands, except that given by Statute to legislate by Order in Council laid before Parliament, which power His Majesty the King could not delegate by Letters Patent.

That it would appear that the Chief Justice's ruling was based upon Section 4 of the British Settlements Act, 1887 (50 and 51 Vict. c. 54), which dealt with the specific case of conferring on a Court in a British possession jurisdiction in respect of matters occurring or arising in a British settlement.

That it would be observed that the language of that section was permissive, and not imperative, and further, that Section 3 of the Act gave His Majesty power to delegate, by Letters Patent laid before both Houses of Parliament, all or any of the powers conferred by the Act on His Majesty in Council.

That it would appear to follow that if the power of the Crown in Council under Section 4 of the Act was duly and lawfully delegated to the Governor of the Straits Settlements by the Letters Patent of the 1st of February, 1886, the regulations of the 11th November made by him would be valid.

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