§ MR. GIBSON
asked Mr. Attorney General, What will be the status of Cetewayo within the limits of the United Kingdom; will he be regarded by Her Majesty's Government as free, or as a prisoner of war; if he is treated as a prisoner, and a writ of habeas corpus should be applied for on his behalf, what legal justification would be offered for his detention; is the Colonial Act passed for his detention spent by his release; and, is it intended to pass an Act for the indemnity of those who may assist in his future detention, similar to the Act passed in the year 1816,In consequence of Napoleon Buonaparte having been detained and kept in custody in the island of St. Helena?
§ THE ATTORNEY GENERAL (Sir HENRY JAMES)
I fear I cannot answer the five Questions of the right hon. and learned Gentleman quite so briefly as I should wish, for, without some explanation, my answer might give rise to misunderstanding. Cetewayo is coming to this country at his own special request. In order to do so, he quits the legal custody in which he now is upon certain terms. He has agreed to obey all directions given to him, and acquiesces in the right of Her Majesty's Government to make such future dispositions as to his custody as may be thought right. While in this country he will not, unless circumstances shall arise which are not now contemplated, be subjected to the actual restraints which generally accompany the position of a prisoner of war; but he will necessarily be always accompanied by someone who will be approved by the Government. This will, I think, give a practical answer to the right hon. and learned Gentleman's first and second Question; but I do not desire to shrink from bearing the responsibility of the opinion given by the Solicitor General and. myself in March last, and which is referred to in Lord Kimberley's dispatch of March 9. We advised the Colonial Office that Cetewayo could, if the Government thought right, be treated as a prisoner of war, and we 1951 adhere to that opinion. [Mr. GIBSON: Treated now as a prisoner?] Yes, now. I am aware that a different view has been expressed elsewhere; and while I speak with, sincere respect for that opinion, my learned Friend and I adhere to the advice we have already given. While the country was at war with Cetewayo as King of the Zulus, he was taken prisoner by our Forces. No Treaty of Peace has been made with him, and no peace has been made which affects his status. My view is that the right to detain a prisoner of war continues until the country which captured him agrees to his release. I am glad to think that this view has been expressed by Lord Ellen borough and Lord Eldon. In reference to our right to detain Napoleon Buonaparte, the former said—From the consequences of that state of war he cannot be redeemed, but by the terms of such Treaty of Peace as we may make with him individually, or with others for him. Being once an enemy he can only be at peace with us by our act and consent, and, of course, upon such terms only as' we shall mutually agree upon.And Lord Eldon said—The question is whether, if we have a right to treat him as a prisoner of war, it can possibly be inconsistent with justice or the Law of Nations that till some peace is made by Treaty with some person considered as his Sovereign, or till some peace is made with him, we keep him in prison in some part of the King's Dominions. I presume if we can keep him as a prisoner of war for a moment, we can keep him until some peace is made with him or including him.The opinion thus expressed appears to have been entertained by the late Government, for Cetewayo was detained as a prisoner of war from the termination of the war in August, 1879, until July, 1880, when he was handed over to the authorities of the Cape Colony. As to the third Question, I cannot anticipate that any writ of habeas corpus can be applied for, or that any such motion would be entertained; but if it be, a Return would be made setting out the facts according to the truth. To the fourth Question, I say that I think that as soon as Cetewayo passes from his present detention, the powers of the Colonial Act will be spent; but that Act was passed to justify Cetewayo's detention by the Cape Colony on the ground that the Colony, as such, not having been at war with him, there was no power to detain him in the Colony. Imperial rights are 1952 not interfered with by its powers being expended. The last Question of my right hon. and learned Friend is calculated to give rise to a false impression. The Act of Indemnity passed in 1816 did not contain any indemnity on account of the detention of Napoleon Buonaparte, but only on account of certain orders which might have been given, or acts which might have been done at St. Helena under the urgency of the occasion in order safely to detain him. I will only add that on introducing that Bill into this House in March, 1816, Lord Castlereagh said he did not think that any Act of Indemnity was necessary, for he maintained our right to detain Napoleon Buonaparte as a prisoner of war, although a Treaty of Peace with France had been concluded, and Mr. Brougham said—Whether we consider Buonaparte as a prisoner of war not claimed by his own Government or in any other light, we have an unquestionable right to detain him, even by the Law of Nations, without any Act of Parliament.I believe I have now answered all the Questions put to me by the right hon. and learned Gentleman.
§ [No answer was given.]