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12835

No. 31.

(NATAL.)

COLONIAL OFFICE to ATTORNEY-GENERAL.

[Execution of natives under martial law: question as to the liability of the Governor to indictment in England, and steps to be taken to protect him.]

SIR,

Downing Street, April 21, 1906.

I AM directed by the Earl of Elgin to transmit to you a copy of correspondence with Messrs. Royle and Co., from which it appears that it is intended to take criminal proceedings against the Governor of Natal in connection with the recent execution

Royle & Co., April 11, 1906,

To Royle & Co., April 21.

of 12 natives by sentence of a Court Martial confirmed by the Governor.

2. Lord Elgin will be glad if you will be so good as to advise him whether if the Governor returns to England after an Act of Indemnity has been passed in Natal, he will be liable to indictment under the Imperial Acts, 11 William III.. Cap. 12, 42 George III., Cap. 85, relative to offences committed by Governors and officials in the Colonies, or under Section 9 of the Imperial Act, 24 and 25 Vict., Cap. 100, or otherwise. Lord Elgin presumes that so long as the Governor remains in Natal, no proceedings can be taken against him except in the Courts of that Colony.

3. If you are of opinion that criminal proceedings could be taken against the Governor notwithstanding an Act of Indemnity passed in the Colony, Lord Elgin would be glad to learn what information you would require to be able to take the responsibility of entering a nolle prosequi on behalf of the Crown.

I am, &c.,

FRED. GRAHAM.

PUBLIC RECORD OFFICE

Reference :-

EPER C.O.8

سلسالسا

.885

(14321.)

Opinion.

1. The first question although not entirely free from doubt, must, in my opinion, be answered in the affirmative, for while it is clear that an Act of Indemnity passed in Natal would afford an answer to civil proceedings here, it would, in my opinion, be held that such an Act could not operate to relieve the Governor from liability to indictment in England in respect of an offence for which he would be criminally answerable in this country under an Imperial Act of Parliament. I should add that the Act of Indemnity could not in any view prevent the preferring of an indictment. Its effect and operation would have to be determined upon the trial of the indictment if found by the Grand Jury.

No criminal proccodings could be taken against the Governor here so long as he remains in Natal.

2. I should require a statement from the Colonial Office showing that Martial Law had been duly proclaimed in the Colony and the circumstances justifying its proclamation, that the natives had been executed under a sentence of a Court Martial properly constituted under that law, and all circumstances tending to show that they had had a fair and proper trial and had been properly convicted. The record of the proceedings would afford the best evidence of the latter fact.

As a nolle prosequi can only be entered after a bill of indictment has been found by the Grand Jury and upon the facts as known it seems at least improbabie that any such bill would be found, the question of entering a nolle prosequi is not likely to arise.

JOHN L. WALTON.

(24) April, 1906.

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16 PUBLIC RECORD OFFICE, LONDON

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