CO885-(15-16) — Page 4

4219 S.

PUBLIC RECORD OFFICE

Reference :-

PLEC.O. 885

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

COPYRIGHT PHOTOGRABH-NOT TO

15 PUBLIC RECORD OFFICE, LONDON

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SIR,

No. 19 A.

(SOUTH AFRICA.)

LAW OFFICERS TO COLONIAL OFFICE.

Law Officers' Department, Royal Courts of Justice, February 6, 1900.

We were honoured with your commands signified in Mr. H. Bertram Cox's letter of the 5th instant, stating that he was directed by you to transmit to us a copy of a telegram received by the Secretary of State for Foreign Affairs from the Presidents of the South African Republic and Orange Free State, claiming that African-born in- habitants of the Colonies of Natal and the Cape of Good Hope who had joined the Boer forces should when captured by the British authorities be treated as prisoners of war, and should not be tried for high treason. That it might be intended to maintain that under the Proclamations issued on behalf of the Orange Free State and South African Republic, which would be found at pp. 218 and 211 of Blue Book (C. 33— 1900), the inhabitants of districts invaded by the Boer forces who had joined them had become citizens of the Republics; but that the words of the telegram appeared wide enough to cover Africander Colonists from portions of the Colonies not occupied by

the Boers.

That on receipt of that telegram from the Secretary of State for Foreign Affairs you communicated with Sir A. Milner. That a copy of the telegram sent to Sir A. Milner and of his reply were inclosed.

That with reference to the concluding paragraph of the latter telegram, Mr. Cox was to explain that, on the 29th September, by & Resolution of the Volksraad having the effect of law within the South African Republic, all strangers serving with the Boor army were given the franchise and became burghers of the South African Republic. That reference might be made in that connection to p. 87 of the Blue Book above mentioned. That it might, of course, be assumed that no proceedings for high treason would be taken against any persons who were not by British law subjects of Her Majesty,

That in view of the threat of the Governments of the South African Republic and Orange Free State to resort to reprisals upon the British prisoners at Pretoria if their demand was not complied with, and of the danger of such rébels being acquitted by the Civil Courts contrary to the justice of the case, it had been suggested that in future cases the Colonial Dutch prisoners should not at once he brought to trial, but should be detained in custody and not tried until the termination of the war. That it had also been suggested that such persons might be deported to St. Helena for safe custody in preference to retaining them in Cape Colony.

-That it must, however, he pointed out that martial law had not been proclaimed throughout Cape Colony, but only in certain of the border districts, and also that up to the present time the prisoners who had been treated as rebels had not, in most cases, been dealt with under martial law, but had been handed over to the civil authorities for trial under the ordinary law of the Colony.

That doubt was entertained whether, in the absence of statutory provision to that effect, such prisoners could be lawfully detained in Cape Colony in a district to which martial law had not been applied, and whether such prisoners would not, if detained in or passing through such districts, be able to obtain a writ of habeas corpus, and obtain their discharge if, in fact, they were being detained not as prisoners of war but on a civil charge, and had not been brought to trial within the time, if any, prescribed by the law of the Colony.

That doubt was further entertained whether, in the absence of a law of the Cape Colony passed for the purpose, such prisoners could be deported from South Africa or detained in St. Helena without a law authorizing their detention passed by the Island Legislature. That such a law could be passed in St. Helena without difficulty, but that it would be difficult to obtain legislation, if required, in Cape Colony, and that the proclamation of martial law throughout Cape Colony might lead to the resigna- tion of the Cape Ministry, which it was desired to avoid.

That Mr. Bertram Cox was to request us to take the above matters into our con- sideration and to advise you-

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