CO885-(15-16) — Page 534

།?། ?] །

PUBLIC RECORD OFFICE

5

19

Reference :-

C.O.885

16 PUBLIC RECORD OFFICE, LONDON

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

1

2

receiving but not to the removing Protectorate, ex hypothesi, the latter could remove its prisoners independently of the Act to any country willing to receive them, whilst the receiving Protectorate, although bound by the Act, would be doing something not contemplated, but at the same time not prohibited by the Act. That the conclusion was that in both the above cases the removal and reception could be effected by mutual agreement, each Protectorate legalising by enactment the action necessary within its own limits. Thus the argument was not "based on the assump- tion that, apart from the provisions of the Imperial Statute, the High Commissioner or the Protectorate has inherent powers to legislate by Proclamation so as to enable the removal of prisoners beyond the territorial limits of the Protectorate which are clearly the limits of such legislative jurisdiction as the High Commissioner may possess. That it was based on the fact that each Protectorate had under its constitution power to legislate for its peace, order, and good government, and that, on the assumption that the removal and reception of prisoners could be effected by the exercise of this power, each Protectorate providing by legislation for what had to be done within its own limits.

That there was, of course, the condition precedent that such Protectorate must be adjacent, in order that the prisoner might at all times during removal be in legal custody. That that condition was satisfied in the case of North-Western Rhodesia and Southern Rhodesia, and that it was submitted that the Southern Rhodesia Ordinance 5 of 1905 and North-Western Rhodesia Proclamation 19 of 1907 con- stituted a valid legal machinery for the removal of prisoners from the former to the latter Protectorate, on the assumption that those Protectorates fell within the second of the two cases already put, ie, that the Colonial Prisoners Removal Act, 1884, applied to Southern Rhodesia, the receiving Protectorate, but not to North-Western Rhodesia, the removing Protectorate.

19.

That Mr. Just was to invite an expression of our opinion whether the Colonial Prisoners Removal Act, 1884, did, or did not, now apply to North-Western Rhodesia, a question which was discussed at length in the papers now laid before That in the event of our dissenting from the view held by the local legal adviser, in which your Lordship and Sir Edward Grey concurred, that the Act, although formerly applying to the British sphere north of the Zambesi (which included the territory now known as North-Western Rhodesia), did not now apply to North-Western Rhodesia, the provisions of Article 80 of the Africa Order in Council, 1889, not having been saved by the Barotziland-North-Western Rhodesia Order in Council, 1899, it would be necessary to consider the further question whether the removal and reception of prisoners from and within two Protectorates, to both of which the Act applied, could validly be carried out independently of the Act by means of such local legislation as the Southern Rhodesia Ordinance 5 of 1905 and the North-Western Rhodesia Pro- clamation 19 of 1907.

That it would seem that the Act of 1884 was not exhaustive, i.e., that it did not apply to all colonial prisoners, but only to the particular prisoners indicated in Section 2 thereof. That, if this were so, it would follow that it was open to two Colonies, or two Protectorates to which the Act applied, to make arrangements independently of the Act for the removal and reception of prisoners other than those indicated in Section 2 of the Act.

That be this as it might such arrangements had, in' fact, been provided for by the four South African Colonies, as would be seen from the four enactments, copies of which were forwarded to us:-Cape Act 6 of 1884, Natal Act 15 of 1905, Trans- vaal Ordinance 36 of 1904, and Orange River Colony Ordinance 17 of 1904. That it was true that the Cape Act, upon which the three other enactments (and also the Southern Rhodesia Ordinance 5 of 1905) were modelled, was passed on 18th July, 1884, before the Colonial Prisoners Removal Act, 1884, had been enacted, but that Mr. Just was to point out that the Cape Act had continued in operation. ever since. That your Lordship was not aware that the validity of any of these enactments had been questioned hitherto by any person either in this country or in South Africa.

That in dealing with the questions now raised the Colonial Prisoners Removal Act, 1869, might be left out of consideration, for although existing or future arrangements for the removal and reception of prisoners made between two Colonies and confirmed by Order in Council under that Act were specially saved by Section 16 (2) of the Act of 1884, no such arrangements had in fact been entered into by any of the South African Colonies. That, moreover, as the Act of 1969

3

applied only to Colonies and there did not appear to be any machinery for extending it to Protectorates, it would not be possible for two or more Protectorates to enter into an agreement under its provisions.

That with regard to the analogy of the Fugitive Offenders Act suggested by Mr. Shippard and adopted in the Foreign Office letter, Mr. Just was to observe that the two Acts did not stand upon quite the same footing. That it was highly neces- sary that fugitive criminals in South Africa dodging across the border from one Colony or Protectorate into another should be liable to arrest in any of them. That there was not the same necessity that North-Western Rhodesia prisoners should be removable to the United Kingdom (which was the main object of the Colonial Prisoners Removal Act) and that if the needs of North-Western Rhodesia in this respect were limited to removal to Southern Rhodesia it was not "essential to apply the Colonial Prisoners Removal Act to the Protectorate, provided that the end in view could, as submitted in Mr. Just's letter to us, be attained by local legis- lation.

,,

That Mr. Just was to request us to take the papers into our consideration and to report:-

(1) Whether the Colonial Prisoners Removal Act, 1884, was now in force in North-Western Rhodesia?

(2) Whether the North-Western Rhodesia Proclamation 19 of 1907 was, or was not, ultra vires?

(3) Upon the like question with regard to Southern Rhodesia Ordinance 5 of 1905?

(4) Whether arrangements could be made between two Protectorates for the removal and reception of prisoners and carried into effect by legislation in the Pro- tectorates concerned:-

(a) If the Act of 1884 applied to the removing but not to the receiving Pro- tectorate?

(b) If the Act of 1884 applied to the receiving but not to the removing Pro- tectorate?

(c) If the Act of 1884 applied to both Protectorates?

(5) Whether similar arrangements could be made between two Colonies and carried into effect, not under the Act of 1869, but by local legislation in the Colonies concerned or whether such arrangements were excluded by the Act of 1884?

We have taken the papers into our consideration, and, in obedience to your Lordship's commands, have the honour to

Report-

(1) That in our opinion the Colonial Prisoners Removal Act, 1884, is not in force in North-Western Rhodesia. The question, however, is not free from doubt.

(2) We think that the North-Western Rhodesia Proclamation 19 of 1907 is ultra vires.

(3) We think that the Southern Rhodesia Ordinance 5 of 1905 is also ultra vires.

(4) We think arrangements can be made between two Protectorates for the removal and reception of prisoners only in cases where the Act of 1884 applies to both Protectorates.

(5) Similar arrangements can only be made between two Colonies under the Acts of 1869 and 1884.

The Right Honourable

The Earl of Crewe, K.G.,

&c., &c.,

&c.

LIST OF PAPERS.

1. British South Africa Company to Colonial Office.

Colonial Office to British South Africa Company.

2.

3. British South Africa Company to Colonial Office.

We have, &c..

W. S. ROBSON. S. T. EVANS.

12th April, 1907.

9th May, 1907.

23rd May, 1907.