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R

20074

15588.

Report.

(Received 19th May, 1900.)

In our opinion the word "incapable" cannot be construed so as to cover the Governor's present position. It means personal incapacity.

Under Clause 20 of the Letters Patent the Crown hus reserved power to amend the Letters Patent and they could be amended in such a way as to provide for the present emergency either under Clause 16 or Clause 17. It would appear to be better to make an amendment under Clause 17 as it is apparently desired that the present Governor should be allowed to exercise his functions as far as is possible under existing circum.

stances.

We therefore advise that Letters Patent should be issued reciting that the Governor is at present prevented from exercising his functions in the Colony owing to the disturbed condition of the country around Coomassie where he is and appointing some other person or persons to exercise all or any of the powers vested in the Governor within any part of the Colony, until the Governor shall be able to resume the exercise of his functions in the Colony.

R. B. F.

E. C.

No. 36D.

(SOUTH AFRICA.).

MINUTE BY THE JUDGE ADVOCATE-GENERAL.

Principal Under Secretary,

I desire to express my strong conviction that it is highly desirable that the pro- ceedings of Courts Martial on civilians under Martial Law should be sent to the office of the Judge Advocate-General for revision and for safe custody.

I am not aware that there is any precedent, either way, on this subject, but I think one should be made.

As to revision, it is secured by such process that the Court acted within its juris- diction, that the proceedings were according to proper legal forms and principles, and that the decision was supported by sufficient evidence. Such security appears to me highly important to the prisoners, who may well feel doubts about the procedure of a Court Martial perhaps composed wholly of officers, perhaps hastily summoned.

But An ex-

it is much more important to my mind to the officers composing the tribunal. cess of jurisdiction may expose them to legal proceedings of a most lamentable kind, and there is an excess, or want, of jurisdiction if the Court is not properly constituted or exceeds its powers. I do not think Acts of Indemnity are necessary in the case of the exercise of Martial Law in a country under military occupation.

But if, in any case, they are, it must facilitate their passing to be assured that the proceedings have been in accordance with substantial justice.

As to custody, it seems to me hardly necessary to point out that it is essential in regard to possible proceedings in Parliament or in Courts of Law, as, it may be added, in reconsideration of sentences but [that] the authentic proceedings should be kept. in an accessible place. It may be added that a collection of proceedings is invaluable as a means of providing authorities and precedents.

I may add that the office of the Judge Advocate-General appears to be the best authority for the above purposes, because it is accustomed to the revision and custody of the proceedings of Courts Martial on soldiers; and it is to be remembered that the proceedings of the Courts Martial in question follow those of ordinary Courts Martial, the composition of the tribunal is generally the same, the charges are based on the Army Act, and the substantial and evidentiary law is taken from the Army Act.

I have ventured to express these views because the matter is new, and, beyond question, important. I do not at all desire to add to the duties of the office of the Judge Advocate-General, which are already considerable, but I think that that office can perform the duties in question more readily than any other with which I am acquainted.

F. H. JEUNE,

Judge Advocate-General.

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May 30, 1900.

7479—6—12/1900 Wt 324

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PUBLIC RECORD OFFICE

Reference :-

EPH C.O. 885

15 PUBLIC RECORD OFFICE, LONDON

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

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