The Detention of Sekgoma

Sekgoma was the son of Chief Letsholathibe. On his death in 1874, Letsholathibe was succeeded by his son Moremi, who died in 1891 leaving a nine-year-old son, Mathiba. In 1895, Sekgoma became acting chief of the tribe with the support of the British, who told him that they would both recognise his authority over his country ‘and will guarantee you in the possession of it’.Footnote ³⁶ However, in 1905, his right to be chief was challenged by the supporters of Mathiba.Footnote ³⁷ The immediate cause of the dispute was said to be Sekgoma’s alleged ill-treatment of his wife, whom he accused of infidelity, though deeper political rivalries lay behind this apparently domestic quarrel.Footnote ³⁸ In December 1905, his opponents petitioned for Sekgoma’s removal, claiming that he had only been regent for Mathiba. The Resident Commissioner for Bechuanaland, Ralph Williams, was initially untroubled by this quarrel, but matters escalated after Sekgoma visited the colony in February on personal business.Footnote ³⁹ In his absence, some members of his tribe sent for Mathiba to return and assume the chieftainship, whereupon Sekgoma’s followers called him back to the tribe’s capital, Tsau. Williams now began to fear a conflict, which might endanger white interests.Footnote ⁴⁰ On his advice, the High Commissioner, Lord Selborne, decided that both Sekgoma and Mathiba should be kept away from their tribal homeland (the Batawana Reserve) pending an investigation into their respective claims. Sekgoma was met at Mafeking by two Bechuanaland policemen, and escorted into the protectorate. On 20 April 1906, a warrant was issued in Serowe (in the protectorate) to detain them both.

Two months later, an inquiry conducted by Williams in Tsau determined that Mathiba was the rightful chief.Footnote ⁴¹ Mathiba was duly released and instructed to return to Tsau, while Sekgoma remained in detention in Gaberones, protesting at being deposed without a trial.Footnote ⁴² As officials would soon discover, the legal basis for his detention was far from firm. Segkoma had been arrested under a simple warrant in Selborne’s name, purportedly under the Expulsion of Filibusters Proclamation of 30 June 1891, which had been passed with the aim of removing disruptive Transvaal Boers from the protectorate. Selborne’s advisers doubted whether Sekgoma could be properly dealt with under this legislation, and plans were made to replace it with a proclamation to authorise both Sekgoma’s detention and his deportation. Influenced by his predecessor Lord Kitchener’s proposal in 1901 to exile the troublesome Bakwena chief Sebele, Selborne wanted to remove Sekgoma from South Africa, preferably to the Seychelles.Footnote ⁴³ To facilitate this, he repealed the 1891 proclamation and issued a new one on 14 September, which authorised him to order anyone he considered dangerous to the peace, order and good governance to leave the protectorate, and legalised the detention of anyone held within its provisions.Footnote ⁴⁴

In order to avoid sending Sekgoma through the Cape, whose court had freed Sigcau, plans were made to remove him via Southern Rhodesia and Beira.Footnote ⁴⁵ However, these plans foundered on the opposition of the Secretary of State, for just as Chamberlain had vetoed Sebele’s deportation to the Seychelles, so Elgin vetoed Sekgoma’s. Elgin pointed to ‘the obvious objections to the penal transportation of a man who has committed no offence and is subject to no condemnation, and whose power to disturb the public peace may prove to be of a transient character’.Footnote ⁴⁶ Nor was he prepared to consent to Sekgoma’s detention for any longer than was necessary for Mathiba ‘to establish his position completely’.Footnote ⁴⁷ Elgin also pointed out the legal flaws in Selborne’s new proclamation: since it was worded in such a way as to apply only to those who had already been told to leave but had not yet done so, it did not apply to Sekgoma.Footnote ⁴⁸ Given these flaws, Sekgoma’s detention could only be seen as an act of state, without legal warrant, which meant that further legislation, including indemnity provisions, would have to be passed.Footnote ⁴⁹ London accordingly sent a new proclamation – ‘founded on the experience of other similar cases’ – to authorise the detention specifically of Sekgoma,Footnote ⁵⁰ which was issued by Selborne on 5 December 1906.

Two weeks before the new proclamation was issued, Sekgoma applied to the High Court in Kimberley to obtain his release, having served a summons on the new Resident Commissioner of Bechuanaland, Col. F. W. Panzera, as he passed through the town. Aware that the warrant under which Sekgoma had been detained was invalid, Panzera realised that it was ‘necessary, pro forma, to quote some authority’, and so he simply responded that Sekgoma was being held under a warrant issued by the High Commissioner on 2 April.Footnote ⁵¹ News of this action reached the Colonial Office too late to give any direct instructions on how to defend the action, but a telegram was sent signalling Elgin’s approval of the conduct of his officials in respect of Sekgoma’s detention. The careful wording was designed formally to ratify his detention as an act of state, and hence (if necessary) to put it beyond the court’s jurisdiction, but without doing so overtly, given that the proceedings had already commenced.Footnote ⁵² This precaution turned out to be unnecessary, for Lange J accepted the crown’s argument that this court in the Cape Colony had no jurisdiction to determine a case between a resident of the Bechuanaland Protectorate and its government. Since Sekgoma’s own affidavit stated that he had only been arrested after he had entered the protectorate, Lange advised Sekgoma to appeal to the High Commissioner, and if necessary to the Privy Council.Footnote ⁵³

Over the next three years, Sekgoma remained in detention in a house in Gaberones, while the colonial authorities debated what was to be done with him. In March 1907, Sekgoma said he was willing to give up his claims to be chief, if he were allowed to move with his followers to another area, such as Barotseland.Footnote ⁵⁴ Although Panzera was willing to entertain this proposal, Selborne rejected it, fearing that Sekgoma might return to Tsau, which might lead to bloodshed.Footnote ⁵⁵ Mindful that it was both expensive and ‘distasteful’ to keep Sekgoma a prisoner, Selborne suggested in January 1908 that he might be allowed to live (under a proclamation) elsewhere in southern Africa, such as Nyasaland.Footnote ⁵⁶ However, this proposal was again vetoed by Elgin, who opposed any removal which was not entirely voluntary, and who reminded Selborne that the chief was to be detained only until Mathiba was fully established.Footnote ⁵⁷ This was not, however, an imminent prospect, for, as Panzera put it, Mathiba was ‘more imbued with the characteristics of a lady missionary than those of a ruler’.Footnote ⁵⁸

In March 1908, the acting magistrate at Tsau, Lt. H. D. Hannay, detained four of Sekgoma’s followers, having intercepted a letter purportedly from Sekgoma, ordering them to go to Portuguese territory, where he would join them.Footnote ⁵⁹ This led officials once again to contemplate removing Sekgoma, whose continued presence in Bechuanaland was now considered to be disruptive.Footnote ⁶⁰ At the same time, Sekgoma promised that, if he were released, he would report weekly to the Resident Commissioner at Mafeking and would not enter the protectorate without permission.Footnote ⁶¹ Panzera was keen to take up this offer, and move the chief to the Cape or Basutoland, but Selborne was not prepared to trust to Sekgoma’s good will, and repeated his earlier proposal to deport him to the Seychelles via Beira.Footnote ⁶² Once again, he was rebuffed, for the new Secretary of State, the Earl of Crewe, was reluctant to bring a bill before parliament to allow his transportation over the seas, and thought it likely in its absence that Sekgoma’s legal advisers would bring a writ of habeas corpus.Footnote ⁶³ In Crewe’s opinion, he would simply have to be held on parole elsewhere in South Africa, whatever the risks of his escape. As a result of these discussions, Sekgoma was offered a farm in the Barberton District of Transvaal.Footnote ⁶⁴

Although initially keen on accepting this offer, Sekgoma suddenly changed his mind at the beginning of March 1909, telling Acting Resident Commissioner Barry May that ‘I wish to have my case tried before the Courts in England or else to be killed.’Footnote ⁶⁵ What prompted his change of mind was the settlement of a dispute over his property, which freed funds to allow his case to be taken to London. When it came to dealing with Segkoma’s rights to property, the authorities showed themselves to be much more legally punctilious than they were in dealing with his liberty. After his detention, the authorities had valued Sekgoma’s assets in Ngamiland at 240 cattle, 176 sheep and goats, a handful of other animals and £88 in cash.Footnote ⁶⁶ They at first considered appointing a curator bonis to manage this property while Sekgoma was in detention, but found that the Resident Commissioner’s court had no power to do so. Plans to legislate to allow the appointment of a curator bonis for a detainee then stalled when Elgin objected that such powers were suitable only for managing the property of convicted prisoners.Footnote ⁶⁷ They became redundant when at the beginning of 1908 Sekgoma gave a power of attorney to Charles Riley, a man of mixed race, who had lived in the protectorate for twenty-six years and who would be Sekgoma’s dogged champion over the next four years. Riley also took up Sekgoma’s claims to a much larger number of cattle in Ngamiland, and signalled his intention to commence proceedings for this property in the Assistant Commissioner’s Court in Francistown. The prospect of these proceedings alarmed the authorities, given that it might require the presence in court both of Sekgoma and of many witnesses from distant Tsau.Footnote ⁶⁸ A proclamation was therefore passed to empower a special commissioner’s court to hear any disputes concerning Sekgoma’s property at Tsau.Footnote ⁶⁹ At these hearings, Sekgoma’s agent laid claim to over 8,500 head of cattle, title to many of which depended on his right as chief. In the end, he was awarded only 1,260 head of cattle claimed,Footnote ⁷⁰ to add to the 637 cattle which Riley had already recovered in the Acting Commissioner’s court. If the award was less than Sekgoma had anticipated, it nevertheless provided valuable assets which could be used to fund his challenges to his continued detention.

With funds available, Riley proposed to go to London, along with the editor of the Mafeking Mail, G. N. H. Whales, to put the matter of Sekgoma’s incarceration before the British public.Footnote ⁷¹ Meanwhile, negotiations over a possible relocation continued. By now, May had come to the view that the two Tawana factions would never be reconciled, and that Selborne’s attempt to confer all power on Mathiba had prevented the kind of tribal secession which was natural in Tswana society. He therefore proposed allowing Sekgoma and his followers to settle elsewhere in the region.Footnote ⁷² May met Riley in Mafeking, and discussed the possibility of relocating Sekgoma and his followers on land to the north of the Molopo River, but found Riley unwilling to enter into any commitments until he had returned from England. Selborne suggested, uncharitably, that Riley and Whales, who were on the verge of bankruptcy, simply wanted to travel at the chief’s expense; more charitably, May suggested that Riley did not think he could advise Sekgoma to accept the offer of land on the inhospitable Molopo until he had exhausted all other options.Footnote ⁷³ On 7 April, Riley and Whales sailed to London, along with Sekgoma’s secretary, Kebalepile, to put their case before the British public.

Meanwhile, officials in London were confident that they had put themselves in a strong position if any question were raised in parliament. As Lambert minuted, having made two offers – of land in the Transvaal for Sekgoma himself, or territory near the Molopo where he could take his followers – the government could ‘say that he is alone responsible for our having to keep him in detention at Gaberones to prevent his setting part of the Protectorate a blaze, and the sooner Messrs Riley & Whales are made to understand that they are wasting S’s money in vain the better for Sekgoma’.Footnote ⁷⁴ With the Colonial Office digging in its heels, at the beginning of September, Riley instructed solicitors to commence proceedings against Selborne – then in London – both for damages for false imprisonment and for a writ of habeas corpus. By the time the documents were ready to serve on the High Commissioner, however, he was on a ship bound for South Africa.Footnote ⁷⁵ In his absence, the decision was taken to commence proceedings against the Earl of Crewe.

The Litigation in the King’s Bench Division and the Court of Appeal

Sekgoma’s application for a habeas corpus was filed in October 1909. In his answering affidavit, Crewe stated that Bechuanaland was a foreign country, where the crown had jurisdiction by virtue of the Foreign Jurisdiction Act; that Sekgoma was lawfully detained by virtue of the proclamation of December 1906; and that his detention was an act of state which could not be questioned by the court. He also submitted that he did not himself have custody of Sekgoma and that in any event no writ of habeas corpus could run into this foreign territory. Against this, Sekgoma’s lawyers took the view that Sigcau’s case had established that a proclamation such as this was ‘absolutely illegal’, and that the African chief had a right to a habeas.Footnote ⁷⁶

In the Divisional Court, the judges saw two obstacles in the way of Sekgoma’s application. The first obstacle related to the court’s power to issue the writ. Chief Justice Lord Alverstone agreed that, if the protectorate were a foreign country, then the court would have no jurisdiction. However, in view of the fact that no court had yet determined ‘the exact position of these Protectorates’, and given that Sekgoma had been described as a British subject in Panzera’s original affidavit in Kimberley, he was prepared to assume that Bechuanaland was a British dominion. Nonetheless, Alverstone held that Sekgoma was still debarred from seeking the writ in London: since, in his view, there were courts in the protectorate – set up under the Proclamation of 11 February 1896 – which could issue the writ, his application was barred by the 1862 Habeas Corpus Act, which enacted that no English court could issue the writ to a colony or ‘foreign dominion’ whose courts had the power to issue it. Instead of seeking his remedy in Westminster, Sekgoma should have gone to the Assistant Commissioner’s court in Bechuanaland, and appealed from there to the Privy Council.Footnote ⁷⁷ The second obstacle related to the choice of the Earl of Crewe as defendant. On this issue, the court held that the Secretary of State had neither custody of Sekgoma nor control of his gaoler. Since his only power was to advise the crown, he was not a suitable recipient of the writ.Footnote ⁷⁸ This was, in fact, a rather artificial view to take: not only had Lord Crewe monitored all the negotiations with Sekgoma’s representatives, but he was also the man who took the final decisions. Indeed, when preparing for the case in September, the Colonial Office itself took the view that Crewe was the appropriate defendant.Footnote ⁷⁹

This court did not pronounce a judgment on the substantive question of the validity of the proclamation, though it was evident that the judges were sympathetic to Sekgoma’s position on this point. Had the procedural points not got in the way, Alverstone indicated, the court would have granted the writ, since he felt that the question of the vires of the proclamation could not be settled merely on affidavits, but might require a special case.Footnote ⁸⁰ He added that a proclamation providing for the detention of a particular individual was ‘a very serious step indeed’, which could be justified only by showing ‘paramount authority recognised as being lawful’. In his view, such a provision would be impossible in any part of the British dominions where there was constitutional government, and could exist only in such places where no laws had been laid down by the crown and where no local law could deal with the matter.Footnote ⁸¹ Justice Darling, in his concurring judgment, added that the proclamation could not be seen as an act of state, but was a legal instrument whose validity could be questioned by the court. ‘I am very much inclined to think’, he concluded, that the proclamation ‘does exceed the powers conferred upon the High Commissioner.’Footnote ⁸²

As Riley headed back to South Africa, optimistic of ultimate success, officials in London made preparations for the appeal, seeking a determination that would show that Sekgoma had no remedy in any imperial court. They were particularly keen to challenge the argument that Sekgoma was entitled to the rights of a subject. When asked about Panzera’s affidavit describing him as a subject, Selborne replied that it had been drafted with ‘imperfect legal knowledge’, and connoted only that the chief was born within the limits of the area proclaimed a protectorate in 1885.Footnote ⁸³ Legal advice was obtained from the India Office that no decision had ever been taken on the status of residents in the protected states, and notice was also taken of a Law Officers’ opinion that they were not British subjects.Footnote ⁸⁴ Evidence was marshalled from treaties of protection and Orders in Council to establish that Africans in protected states were not British subjects.Footnote ⁸⁵ Officials also looked for precedents in case law. For Bertram Cox, ‘Our real sheet anchor is Staples v R if we can only get our counsel to read the shorthand notes.’Footnote ⁸⁶

Cox’s reference was to an unreported case which went to the Privy Council in 1899, in which a British settler challenged his conviction for theft by the High Court of Matabeleland, which had no jury. Staples claimed that as a British subject, he had carried the rights of Magna Carta with him, and that these rights had been violated by the Matabeleland Order in Council which had been issued under the Foreign Jurisdiction Act. No formal decision had been handed down in this case, but the Colonial Office obtained a memorandum on the grounds of Privy Council’s report, advising the Queen to reject the appeal. This memorandum – probably drafted by Lord Halsbury – related that Matabaleland was a foreign country, much like the Indian princely states which remained for important purposes foreign states whose subjects were not British. In places such as this, by virtue of the Foreign Jurisdiction Act, the crown had ‘absolute power to say what law should be applied, as if it was by absolute conquest’. Although section 12 of the Act limited this absolute power by disallowing any orders ‘repugnant to the provisions of any Act of Parliament extending to Her Majesty’s subjects in that country’, this did not refer to acts such as Magna Carta but only to legislation which ‘applied in some special way to British subjects in the foreign country in question’. In the view of the committee, ‘[i]t would be a most unreasonable limit on the Crown’s power of introducing laws fitting to the circumstances of its subjects in a foreign country if it were made impossible to modify any Act of Parliament which prior to the Order in Council might be invoked as applicable to a British subject.’Footnote ⁸⁷

Unlike the lower court, the Court of Appeal directly addressed the substantive issue of the validity of the proclamation, for it disagreed with the Divisional Court on the two procedural points. On the jurisdictional point, Sekgoma’s counsel, Montague Lush, carefully demonstrated that the Bechuanaland courts did not have the superior court power to issue the writ.Footnote ⁸⁸ On the point as to whether the Secretary of State was the right defendant, it was clear that the judges did not wish this point to get in the way of their determining the larger question.Footnote ⁸⁹ The central question for the court to consider was hence that of the validity of the proclamation. At issue were the powers of the High Commissioner under the Order in Council of 1891. The crown’s argument was that the king had absolute power in ceded or conquered territories, which (thanks to the Foreign Jurisdiction Act) Bechuanaland was deemed to be,Footnote ⁹⁰ and that these powers could be delegated. Sekgoma’s lawyers questioned this by arguing that the crown’s powers were constitutionally limited. In so arguing, Lush invoked Lord Mansfield’s dictum in Campbell v. Hall, that ‘a country conquered by the British arms becomes a dominion of the King in the right of his Crown’ and hence subject to parliament. While the king alone had the power to introduce new laws in such places, ‘this legislation being subordinate […] to his own authority in Parliament, he cannot make any new change contrary to fundamental principles’.Footnote ⁹¹ Furthermore, any rights the king had as a conqueror were given up when he set up a constitution and laws for the conquered or ceded land, as had been done when the system of courts was set up in Bechuanaland under the 1896 proclamation. Lush also challenged the idea that Bechuanaland was a ‘foreign’ territory to which the writ could not run. Since the crown had set up a system of government in Bechuanaland, it enjoyed dominium to all intents and purposes, which meant that the chief was entitled to the rights of Britons, including habeas corpus.

Lush further argued that the powers conferred on the High Commissioner under the Order in Council were not arbitrary. To begin with, a crown whose own powers were constitutionally limited could not confer greater powers on its delegates than it enjoyed itself. Furthermore, under section 12 of the Foreign Jurisdiction Act, the crown had no power to issue an Order in Council repugnant to the Star Chamber Act of 1641, which Lush considered to fall within the Act’s definition of legislation ‘extending to the subjects of the Crown in that country’. As to the Bechuanaland Order in Council itself, section 2 stipulated that the High Commissioner could take only such actions as were ‘lawful’, which Lush contended meant lawful according to wider constitutional principles, which in turn placed a limit on his power to provide for peace, order and good government. While Lush did not deny that parliament had the power to legislate in an arbitrary way – as Lord Watson had conceded in Sigcau’s case – he argued that a close examination of the instruments would reveal that this was not the case here.Footnote ⁹²

In answer, Sidney Rowlatt argued that the king was a constitutional monarch only in those dominions where constitutional government had been set up.Footnote ⁹³ To dislodge Lord Mansfield’s point that the crown’s own power was limited by fundamental law, he argued that the rule from Campbell v. Hall had been clarified and modified by the Colonial Laws Validity Act of 1865, which was itself echoed in section 12 of the Foreign Jurisdiction Act. Invoking R. v. Staples, he argued that by virtue of this legislation, the crown’s legislative capacity in the colonies was bound only by imperial legislation ‘extending to the colony’ or ‘Her Majesty’s subjects’ in the jurisdiction in question. The crown’s legislative powers in these areas were as extensive as those which had been conferred on colonial assemblies. To show the extent of these powers, he invoked Phillips v. Eyre,Footnote ⁹⁴ where the Exchequer Chamber had recognised the power of the Jamaican legislature to pass an indemnity act after the Morant Bay rebellion, which qualified the feted ‘fundamental laws’. Countering Lush’s argument that the High Commissioner’s powers to legislate for peace, order and good government were limited, he also cited the 1885 Privy Council decision in Riel v. the Queen, in which Lord Halsbury held that similar words in the British North America Act conferred ‘the utmost discretion’ on the Canadian legislature, and empowered it (and similar legislatures) to pass laws which authorised ‘the widest departure from criminal procedure as it is known and practised in this country’.Footnote ⁹⁵

All three of the judges in the Court of Appeal agreed in dismissing Segkoma’s application. The clearest judgment was given by Lord Justice Farwell. He began by noting that the ‘solution of the present case’ was to be found in the fact that the despotic powers claimed by the crown in Bechuanaland derived not from the royal prerogative, but from the legislature, through the 1890 Act.Footnote ⁹⁶ Turning to the question of whether these powers were limited by any ‘fundamental law’, Farwell drew on Willes J’s comment in Phillips v. Eyre that this expression could connote either repugnancy to an imperial statute which applied to the colony or repugnancy ‘to some principle of natural justice, the violation of which would induce the Court to decline giving effect even to the law of a foreign sovereign State’.Footnote ⁹⁷ Answering Lush’s argument that legislation directed against an individual was against natural justice, he cited Willes’s view that the question of whether particular steps had to be taken to ensure the safety of the state was a political question for the legislator, not a judicial one. Farwell accepted Rowlatt’s argument that the Colonial Laws Validity Act (and consequently the Foreign Jurisdiction Act) had in effect taken the place of Lord Mansfield’s principle.Footnote ⁹⁸ While he agreed that certain imperial acts could not be repealed by an Order in Council – such as the Slave Trade Act of 1843, which declared that it applied to ‘British subjects wheresoever residing’ – he held that the Star Chamber Act did not so apply. His reasons for taking this line were entirely political: ‘The truth is that in countries inhabited by native tribes who largely outnumber the white population such acts, although bulwarks of liberty in the United Kingdom, might, if applied there, well prove the death warrant of the whites.’ Principles which were admirable when applied in ‘an ancient well-ordered State’ would be ‘ruinous when applied to semi-savage tribes’.Footnote ⁹⁹ On the further question of the extent of the High Commissioner’s power to issue proclamations under the Order in Council, Farwell accepted Rowlatt’s broad conception of these powers. For Farwell, the Foreign Jurisdiction Act was the crucial empowering legislation, for in his view, without such empowering legislation, the crown could not of itself authorise the acts complained of.

In his judgment, Farwell accepted Lush’s contention that Sekgoma was a British subject, since the 1890 Act appeared to confer jurisdiction only over Her Majesty’s subjects resident in foreign countries. By contrast, neither Vaughan Williams LJ nor Kennedy LJ regarded Sekgoma as a subject. While disagreeing with the position taken in W. E. Hall’s treatise on the Foreign Powers and Jurisdiction of the British Crown that the Foreign Jurisdiction Act applied only to subjects,Footnote ¹⁰⁰ Vaughan Williams thought that, if it did not apply, then the detention of Sekgoma could still be seen as an act of state, beyond the remit of the courts.Footnote ¹⁰¹ In Kennedy’s view, even if Hall’s interpretation of the act was correct, the crown still had a separate prerogative power to issue the Order in Council in any ‘barbarous and unsettled territory’ under British protection.Footnote ¹⁰² Unlike Farwell, Kennedy was thus prepared to accept that the crown had unlimited prerogative powers in some contexts. Notwithstanding their doubts about the reach of the Act, both these judges also derived the High Commissioner’s powers from parliamentary authorisation. Vaughan Williams LJ admitted that his greatest doubts in the case derived from the fact that what was in effect a proclamation of the outlawry of an individual had been issued without any regard to earlier laws dealing with dangerous persons. Nonetheless, he accepted that the High Commissioner had the full legal discretion to issue such a proclamation under section 4 of the Order in Council.Footnote ¹⁰³

The Colonial Office was acutely aware of the importance of the case. As Lambert told Cox a week before the judgment was handed down, ‘the Sekgome case involves the very basis of our administration in this & all Protectorates & we cannot afford to lose it, whether we look to the danger of tribal war among the Batawana, or the legal difficulties in every country administered under the Foreign Jurisdiction Act.’Footnote ¹⁰⁴ They were well rewarded for the wait. In coming to its conclusion, the court did far more than justify the detention of Sekgoma, who might have been portrayed simply as a foreign ruler held by virtue of an act of state. The decision recognised an open-ended legislative power for the crown in the protectorates, uncontrolled by broader common law principles. Taking a very formalistic view of the rule of law, the Court of Appeal traced the kind of sovereign powers which Lord Watson had said in Sigcau’s case would be needed to authorise the kind of legislation under which Sekgoma was detained from the Foreign Jurisdiction Act. This was a very slender base for such large power. The Foreign Jurisdiction Act had been drafted to deal with the extraterritorial jurisdiction of the crown over its subjects resident in foreign territories, and not to define its constitutional position in protectorates where it now sought to establish systems of government which local rulers were bound to obey. There was nothing in the words of the act to suggest that it was meant to apply to non-subjects, nor did it appear to confer general legislative powers over such people to the crown.

In deciding on the ambit of the crown’s powers here, the judges relied on R. v. Staples, a case which was concerned with the much narrower question of whether an individual British subject carried all his common law rights into a foreign country in which the crown had extraterritorial jurisdiction. The judges’ expansive interpretation of the act echoed the increasingly expansive view taken of protectorates at that moment. The words of the Order in Council were also broadly interpreted, with the judges taking the view that the limitation of the High Commissioner’s powers to do such things as were ‘lawful’ was qualified only by section 12 of the 1890 Act. Similarly, the very broad discretionary powers conferred by the Order in Council on the High Commissioner were regarded as the equivalent of the legislative powers of the parliament of Canada. This contrasted strongly with the approach taken by Chief Justice de Villiers in interpreting the ambit of delegated powers in Sigcau’s case. De Villiers’s distinction between legislative and judicial powers was not remarked upon by the judges in this case. Lush did try to invoke Lord Watson’s judgment in support of his view that the High Commissioner could not be seen to have the despotic powers of an absolute sovereign, but with little effect. As Farwell LJ observed during argument, ‘[t]he actual decision was only on the construction of the Pondoland Annexation Act, and the reasons given were rather contrary to the general ideas.’Footnote ¹⁰⁵

Aftermath

The Court of Appeal’s decision was informed in part by a sense of the imminent danger to the handful of white traders in Ngamiland were Sekgoma to be accorded the rights of an Englishman. Yet it was clear by then that the Colonial Office no longer regarded the chief as any kind of threat. At the same time that court proceedings were in progress, Riley was continuing to negotiate a settlement. He returned to Mafeking after the habeas hearings in the King’s Bench Division, and consulted Sekgoma. Riley now advised the chief to accept any reasonable offer, but, as a back-up, he proposed further litigation, including an appeal from the adverse decision and an action of false imprisonment against Selborne.Footnote ¹⁰⁶ In March 1910, Segkoma asked for a reserve on the Molopo River (as already proposed by the government) as well as an annuity of £150 and a solatium of £5,000 in settlement of all his claims against the government.Footnote ¹⁰⁷ However, the government remained reluctant to release Sekgoma until it was sure that his troublesome followers would leave Ngamiland. They also baulked at the demand for £5,000, which Selborne regarded as a ruse by the ‘unscrupulous and penniless adventurers’ who had supported Sekgoma to extract more money.Footnote ¹⁰⁸ Panzera agreed, telling High Commissioner Herbert Gladstone, ‘[t]he belief that a half breed like Mr Riley could force the hand of the Government would be a serious blow to our prestige and dignity.’Footnote ¹⁰⁹ In the end, the government agreed to pay a settlement of £2,000 and released Sekgoma in March 1911. The question of where to resettle Sekgoma continued to be debated over the next three years, with matters being complicated when the authorities found they had underestimated the size of his following. At the time of his death in January 1914,Footnote ¹¹⁰ plans were already being made for his followers to return to the Batawana Reserve, which could be divided between his followers and Mathiba’s.Footnote ¹¹¹

Zaghlul’s Campaign for Egyptian Independence

Although the British had exercised de facto control since 1882, Egypt remained de jure a part of the Ottoman empire until the beginning of the First World War. In December 1914, Egypt was declared a British protectorate, one month after the Ottomans had joined the war and martial law had been proclaimed. Remembering many promises made since 1882 that Britain had no ambitions to annex Egypt, Egyptian politicians assumed that the protectorate would be temporary only. By 1918, there were also high expectations that President Woodrow Wilson’s declaration that the nations under Ottoman rule should be given the opportunity of autonomous development would be acted on to secure Egyptian independence. In the same week that the armistice was signed, a delegation – or Wafd – visited the British High Commissioner in Cairo, Sir Reginald Wingate, to put the nationalist claim. It was led by Saad Zaghlul Pasha. Zaghlul was a man of long political experience. Born in July 1858, he had been a journalist, a judge and a government minister, acting first as Education Minister and then as Minister of Justice. Having resigned the post in 1912, he was elected to the Legislative Assembly in the following year, becoming its vice-president.Footnote ¹¹² Zaghlul’s request in 1918 to be allowed to go to London to put forward the case for Egyptian independence was rejected by the Foreign Office, which considered Egypt far from ready for self-government.Footnote ¹¹³ In response, Zaghlul and his newly formed political party, al-Wafd al-Misri organised a mass campaign in favour of independence.Footnote ¹¹⁴

Zaghlul proved to be a thorn in the side of the British administration, which soon took steps against what was considered to be his campaign of intimidation. After he had presented a petition designed to pressure the Sultan,Footnote ¹¹⁵ the Foreign Office authorised his removal (under martial law powers) to Malta, where Egyptian political prisoners were already being detained under wartime legislation along with enemy aliens and prisoners of war.Footnote ¹¹⁶ The deportation of Zaghlul and three others on 9 March 1919 proved to be a political miscalculation, for it was followed by riots and demonstrations in Egypt, which served only to add strength to the nationalist movement. General Sir Edmund Allenby, who was sent to Egypt as Special High Commissioner in March with instructions to put the government on a ‘secure and equitable basis’, realised that concessions would have to be made to the nationalists.Footnote ¹¹⁷ Zaghlul was freed from detention, and proceeded immediately to Paris, where he intended to put Egypt’s case to the post-war peace conference. Although he was denied the opportunity to do this, Zaghlul remained in Paris, keeping the case of Egypt in the public mind, by lobbying politicians and giving press interviews.

The ‘Revolution of 1919’ which followed the deportations forced the British government to rethink its policy.Footnote ¹¹⁸ In May, the decision was taken to send a special mission to Egypt, headed by Lord Milner, to inquire into the disturbances and report on ‘the form of the Constitution which, under the Protectorate, will be best calculated to promote its peace and prosperity’.Footnote ¹¹⁹ When the Mission finally arrived in December, it received a hostile reception from the nationalist movement, which had called for a boycott. In this climate, Milner realised that he needed to engage with Zaghlul’s Wafd party, which had gained a complete ‘ascendancy over the Egyptian public’. Although Zaghlul could not be persuaded to meet the Mission in Egypt, he and seven other Wafd representatives went to London in June 1920 to negotiate with Milner.Footnote ¹²⁰ These negotiations resulted in a memorandum, which came to be known as the Milner–Zaghlul Agreement. It envisaged a treaty being signed in which Great Britain would recognise the independence of Egypt as a constitutional monarchy, and in which Egypt would allow a British military force to remain in the country and officials to be appointed to protect foreign interests.

The ‘agreement’ was incomplete, for the parties remained at odds over a number of important questions, including the nature of the British military presence in Egypt. Although Zaghlul wanted to re-open some questions, Milner saw no purpose in any further discussions, since the ‘agreement’ was no more than a basis for future negotiations.Footnote ¹²¹ However, after Milner’s report was published in February 1921, the British government proposed further consultations with an official delegation to be named by the Sultan. This delegation was to be made up of conservative nationalists, including Adli Yakan Pasha, who had acted as an intermediary with Zaghlul in the previous year, and who would become Prime Minister in March. Adli wanted to include Zaghlul in the delegation, and entered into negotiations with the Wafd leader to secure this. However, Zaghlul demanded too high a price for his participation: not only did he insist on the lifting of martial law and an assurance regarding the end of the protectorate, but he also wanted to lead a Wafd-dominated delegation. Since Zaghlul’s demands were acceptable neither to the British nor to Adli,Footnote ¹²² he would form no part of the delegation.

Zaghlul spent the rest of the summer actively campaigning against Adli’s delegation. He put his case before the British press, telling The Times that, if negotiations failed, ‘Egypt will fight England in the same way as Ireland.’Footnote ¹²³ Zaghlul’s case was also publicised in parliament by a friendly group of Labour MPs.Footnote ¹²⁴ In the middle of September, four of these MPs arrived in Egypt on a fact-finding tour arranged by Zaghlul’s supporters, who planned to hold mass meetings with them throughout Egypt. The presence of these politicians in Egypt worried both the Foreign Office and Ernest Scott, the Acting High Commissioner, since Zaghlul’s campaigning threatened to cut the ground from under Adli’s feet. Although there were some calls for him to be deported, Scott was reluctant to take this step: ‘The one fatal policy is to deport people like Zaghlul one day and be obliged to give them a free run the next because we have not the determination or sufficient troops to follow up a drastic policy.’Footnote ¹²⁵

Matters came to a head in December, by which point Foreign Secretary Curzon’s negotiations with Adli on Egypt’s future had broken down. Allenby and the Foreign Office were now keen for Abdel Khalek Sarwat Pasha to become Prime Minister. However, since he was a man even more unpalatable to Zaghlul than Adli, there was concern that his appointment might lead to a revival of agitation. To smooth the path for Sarwat, Allenby banned a meeting which Zaghlul had planned for the end of December, and began to make plans for his deportation if ‘he makes trouble’.Footnote ¹²⁶ Zaghlul did not respond meekly. He issued a protest in the press against the prohibition, and took to the streets to welcome his agent returning from London. After two British soldiers were killed that night in Cairo, Allenby issued a martial law order prohibiting Zaghlul from any further participation in politics, and confining seven of his allies to their homes.Footnote ¹²⁷ Zaghlul’s response was blunt. Rejecting Allenby’s ‘tyrannical order’, he declared that ‘we are all prepared to meet what may possibly befall us with a steady heart and a calm conscience, knowing that any possible measures used against our lawful endeavours will only help the country to realise her aspirations to complete independence.’Footnote ¹²⁸ In response, on 22 December Allenby ordered Zaghlul’s arrest under martial law. He was rapidly moved to Suez (along with five supporters), pending deportation as soon as possible. Allenby wired Curzon: ‘I suggest Ceylon. This would have great effect, as it is remembered in connection with Arabi.’Footnote ¹²⁹

Although Zaghlul was arrested and removed under martial law powers, the continuing existence of martial law was a matter of some embarrassment to the authorities in their efforts to broker a constitutional settlement. It remained in place mainly because it could not be lifted until an indemnity act had been passed, which British officials thought could not be done until a constitutional settlement had been reached.Footnote ¹³⁰ An indemnity bill had in fact been drafted earlier in the year by the Judicial Adviser of the Ministry, Maurice Amos;Footnote ¹³¹ but martial law was not lifted (and an indemnity act passed) until July 1923, after Britain’s unilateral declaration of the ending of the protectorate in February 1922 (which in effect implemented the proposals discussed in London). In the meantime, the British flirted with issuing some kind of proclamation setting limits to the use of martial law, but abandoned the idea as legally unworkable.Footnote ¹³²

The British authorities had also recently tried to temper the arbitrary nature of martial law, when using a military court for the political trial of Abd al-Rahman Fahmi and the leaders of the ‘Vengeance Society’.Footnote ¹³³ On 20 July 1920, Fahmi and twenty-six others (mainly students) were put on trial in the Permanent Military Court in Cairo for seditious conspiracy and incitement to murder. Although this was a trial under martial law, the authorities were keen for it to follow correct legal procedures throughout.Footnote ¹³⁴ Linton Thorp, a member of the Egyptian Native Court, was appointed Judge-Advocate; the defendants were represented by English barristers; the procedure followed that used in English criminal courts; and the proceedings were widely reported in the press, with official encouragement. The prosecution case turned largely on the evidence of accomplices, whose reliability was questionable, but on 5 October, twenty-three of the accused were convicted. Seven of them, including Fahmi, were given a death sentence, which Allenby wanted to see carried out. However, they were able to invoke the provisions of the British Indemnity Act of 1920, which allowed anyone sentenced by a British military court in territory occupied during the war to have their sentences reviewed by the Judge-Advocate-General.Footnote ¹³⁵ The case was sent to London for review, where a political decision was made that no penalty should exceed the maximum allowed under civilian law. This meant that all the death sentences were commuted to fifteen years’ penal servitude.Footnote ¹³⁶

When it came to dealing with political dissidents against whom no legal case could be mounted, the authorities preferred expulsions to detentions under martial law. For instance, in July 1921, Prince Aziz Hassan – a supporter of Zaghlul and a ‘professional anarchist’, who had only recently been allowed to return to Egypt – was expelled, being given a visa only to visit France and Italy.Footnote ¹³⁷ Similarly, in September, Ali Bey Kamel, vice-president of the Nationalist Party, was told that the authorities would expel him from Egypt under martial law powers if he did not leave voluntarily.Footnote ¹³⁸ It is therefore notable that, when it came to Zaghlul, he was ordered to be detained without any form of trial, and not merely to be deported. From London’s point of view, Zaghlul – the man with whom they had been negotiating a new constitutional dispensation for a prolonged period – needed to be removed and confined for political reasons, to prevent his interfering with the kind of settlement the British wished to impose in Egypt. The removal would require the kind of ad hominem legislation which had been used so commonly in West Africa, but which had not been used against that earlier nationalist leader, Urabi Pasha.

Zaghlul’s Challenge to His Detention

Zaghlul was taken to Suez, and from there (on 29 December) to Aden. On 1 March 1922, he was taken to the Seychelles, to be detained under the Seychelles Ordinance No. 1 of 1922. In the meantime, on 28 February, the government announced the termination of the protectorate and the plan to end martial law once an indemnity act had been passed. Egypt’s independence was to be a qualified one, for four crucial powers were retained for British control.Footnote ¹³⁹ This was not the kind of independence Zaghlul had in mind. Over the summer, Labour MPs expressed concern about his continued detention, and its effect on his health. On 8 July, Zaghlul’s wife wrote to the Colonial Secretary, asking for the immediate release of her husband, enclosing medical reports which suggested that his detention there posed a serious risk to his already weak health.Footnote ¹⁴⁰ Given these concerns about his health, a decision was taken to move him to Gibraltar. On 16 August, he was deported from the Seychelles, and two weeks later, a Political Prisoners Detention Ordinance was passed in Gibraltar.Footnote ¹⁴¹

Zaghlul arrived in Gibraltar on 3 September, one day before the publication of the order. Within three weeks of his arrival, Zaghlul applied for a writ of habeas corpus to the Supreme Court of Gibraltar. Presenting his case, G. M. T. Hildyard argued that section 4 of the ordinance – which removed Zaghlul’s right to the writ – was ‘unconstitutional’. He contended that, under the terms of the Royal Instructions under which he acted, the Governor of Gibraltar did not have the power to suspend habeas corpus, and that his power to make laws for the ‘peace, order and good governance’ of the City and Garrison did not authorise the passing of a law relating to anyone outside the colony, in order to create a penal settlement on the Rock.Footnote ¹⁴² The application was dismissed by Chief Justice Daniel T. Tudor on 27 September. The Chief Justice seems to have misunderstood the facts, for he held that Zaghlul had been convicted by a court martial in Egypt prior to his deportation, and so could not be freed under a habeas corpus procedure. Tudor also rejected the argument that the Governor did not have the power to issue the ordinance. It was, he said, impossible to conceive ‘how this enactment could have been framed’ or Zaghlul detained as a political prisoner without instructions from one of the Principal Secretaries of State. It was obvious that Zaghlul’s ‘detention is authorised by an act of state’, which the court could not look into. The judge also refused leave to appeal, not considering the matter to be ‘of great, general or public importance’.Footnote ¹⁴³

While Zaghlul remained incarcerated, his plight attracted the attention of eighty-four Liberal and Labour MPs, who addressed a private letter to the Prime Minister on 9 December calling for his release (as well as the release of those still held in the Seychelles). Zaghlul’s deportation had not, they argued, reduced the unrest in Egypt. Moreover, given his continued ill-health, they warned of ‘[t]he grave risk we are running of being accused of deliberately compassing the death of a man who commands the general respect and devotion of the mass of his countrymen’.Footnote ¹⁴⁴ At the same time, alarming reports were circulating in Cairo about the deteriorating state of his health, which focused increasing attention on the issue of political prisoners. In this atmosphere, Allenby sought a friendly parliamentary question, to allow the government to make it clear that people were being detained not simply for their political views, but for provoking violence.Footnote ¹⁴⁵ At this stage, however, neither Allenby nor the Foreign Office favoured releasing him.

It was in this context of continuing debate over his detention that a petition was lodged in the Privy Council for special leave to appeal against the decision of the Gibraltarian court. Zaghlul’s petition raised the question of whether the crown had the power to detain him as a political prisoner without any charges being made against him.Footnote ¹⁴⁶ The question at issue would be similar to that discussed in the Court of Appeal in Sekgoma’s case, but with a significant difference: for in Zaghlul’s case, the Governor had acted under the authority of the crown’s prerogative powers, rather than under any power delegated from parliament. The case came before the judicial committee on 21 January, where W. H. Upjohn presented the argument for Zaghlul. First, he addressed Tudor CJ’s holding that this was an act of state, which could not be questioned by the court. Insofar as his detention in Egypt was concerned, Upjohn – much of whose career had been spent as a Chancery lawyer – conceded that the court would have no jurisdiction, since Zaghlul was an alien detained outside the empire.Footnote ¹⁴⁷ However, he argued that, once Zaghlul was on imperial soil, he was a ‘friendly alien’ entitled to the rights and liberties of a subject.Footnote ¹⁴⁸ Upjohn did not spend much time on this point, since the judges seemed convinced that the case could not be settled by the ‘act of state’ arguments used by Tudor. Upjohn’s second argument was that the Governor did not have the power to issue the ordinance. Since the Governor was bound by the Letters Patent appointing him to pass ordinances directed to him by the crown, Upjohn could not argue (as Hildyard had attempted) that he had exceeded the Royal Instructions. Instead, he argued that the king himself could not authorise such an ordinance, since he was bound (under Mansfield’s doctrine in Campbell v. Hall) by the fundamental principles of the constitution.

However, the judges were sceptical about Upjohn’s arguments. Haldane questioned whether the residents of conquered colonies acquired the fundamental rights of Britons as soon as they had been conquered, if the king chose not to alter an ancient local law allowing arbitrary imprisonment.Footnote ¹⁴⁹ Sumner wondered whether it was appropriate for courts to question the decision of a Governor with the power to legislate for the peace, order and good governance of a colony that any particular provision was necessary for such purposes. The Chancery barrister Upjohn’s response was that, if it was very clear that a law was not needed for such purposes – as was the case of a law to imprison a man of seventy without trial – then ‘it is really a fraud upon the powers.’Footnote ¹⁵⁰ This linked to Upjohn’s third argument, which echoed Sir Henry de Villiers’s judgment in Sigcau’s case, which was that this was a privilegium made for one man, rather than a general law. Once again, the judges were sceptical, pointing out that this might be seen as a general law allowing the Governor to detain anyone deported from Egypt.

Upjohn’s argument that it is the ‘law in every civilised country of the world that a man is not to be condemned without being heard’ cut little ice. Having read his Dicey, Haldane retorted that, in Belgium, freedoms all depended only on constitutional guarantees. Sumner simply observed that ‘There are many kinds of civilisation, ours is not the best.’Footnote ¹⁵¹ The judges were not prepared to accept Upjohn’s invocation of the principle of Campbell v. Hall. They wanted more specific information to show how the rights claimed for Zaghlul had become law in Gibraltar. However, the information before the highest court in the empire on what the law of Gibraltar actually was was woefully inadequate. Counsel for both sides admitted that they had not researched the matter in detail, while the judges had consulted only the main textbook on colonial law and a short article on Gibraltar. Given the lack of information, the hearing was adjourned for more research to be done.Footnote ¹⁵²

The case would return to the Privy Council on 9 March. In the meantime, officials in London and Cairo were already considering the release of Zaghlul. The Governor of Gibraltar – whose ordinance was ostensibly passed for the peace, order and good governance of his colony – was largely excluded from these discussions. The Foreign Office raised the matter at the end of January with a number of Egyptian nationalists connected with Zaghlul, who felt he could be persuaded to give an undertaking not to return to Egypt if he were released.Footnote ¹⁵³ With the prospect of an indemnity act soon being passed and a liberal constitution enacted, Allenby was keen to find a way to release Zaghlul. At the same time, he feared that, if Zaghlul were released without an undertaking not to return, there would be agitation for his return, which could be prevented only by the politically inconvenient continuation of martial law.Footnote ¹⁵⁴ However, the authorities in Egypt calculated (correctly) that, for political reasons, Zaghlul would not want to return immediately. Allenby’s plans to release Zaghlul were based on political calculations (designed to strengthen Adli’s position) which were derailed as a result of bomb attacks in late February and early March, which resulted in the prolongation of martial law and the detention of six Wafd leaders. Officials in Cairo were discomfited by these detentions, aware that detention without trial ‘leaves an open sore in public opinion here, and is calculated to provoke constant criticism at home’.Footnote ¹⁵⁵ On the day after the Privy Council hearings resumed, Allenby was still discussing with Curzon the possibility of releasing Zaghlul on medical grounds.Footnote ¹⁵⁶

When the court resumed its sittings, the lawyers were much better informed about Gibraltarian law. Gibraltar was a conquered colony, ceded to Britain in the Treaty of Utrecht in 1716. It had received its first charter in 1720, empowering a Judge Advocate and two merchants to settle personal disputes in contract and tort. A second charter in 1739 reformed the judicial system, creating a Court of Civil Pleas, consisting of a Chief Judge (who had to be learned in the laws of England) and two Gibraltarians. It stipulated that the laws of England should be the measure of justice between the parties. It also created a criminal court to determine felonies and trespasses according to English law; though those suspected of treason were to be tried in England. A third charter in 1752 gave the court jurisdiction over real property and probate. A fourth charter was granted in 1817, reconstituting the Court of Civil Pleas, which was replaced by a fifth in 1830 creating a Supreme Court. This latter court was to decide cases ‘according to the law in force’ in the territory and all other laws enacted for the peace, order and good government of the colony. In 1867, an Order in Council was issued to clarify what law applied in Gibraltar, stating that the law of England as it then existed applied, except insofar as otherwise provided for by any Order in Council or local ordinance, made in the past or to be made in the future. A similar Order in Council was issued in 1884, which was followed by a Supreme Court Consolidation Order in 1888. A secret Order in Council – not made public until 1914 – had also been issued in 1896, which gave the Governor the power to dispense with laws during an emergency.

In the two months before the second hearing, lawyers at the Colonial Office prepared to answer the argument that the Governor’s power to legislate was limited by fundamental principles of the English constitution, which had taken root in Gibraltar. Drawing on cases including ex parte Sekgoma, they argued that the Habeas Corpus Act did not apply to Gibraltar, either by virtue of express words or necessary intendment (as required by the Colonial Laws Validity Act).Footnote ¹⁵⁷ Nor could the prerogative writ have any force in Gibraltar until it had been expressly introduced. Habeas corpus, they concluded, was ‘merely imported by the Order in Council’ of 1884 and had ‘no greater force or effect there than a local ordinance on the subject’. The right to habeas corpus could accordingly be removed by a local ordinance. The Colonial Office’s lawyers also addressed the argument that the Governor had gone beyond the Royal Instructions, and had passed an ordinance which was not for the peace, order and good governance of the colony. Responding to the first point, the Colonial Office’s view was that this was not a matter for the courts: ‘The Royal Instructions are a matter solely between the Crown and the Governor of the Colony’, Sir John Risley opined, ‘and if the later disobeys his Instructions he has to answer to the Secretary of State.’Footnote ¹⁵⁸ On the second point, it was argued that the provisions made during the First World War to allow detention without trial in Britain demonstrated that detention orders might well be made for peace, order and good government, and that, as preventative measures, they did not in themselves constitute punishment.Footnote ¹⁵⁹ Equally, the power of the crown to make a privilegium for a single individual had been confirmed in Sekgoma’s case.Footnote ¹⁶⁰

When the case returned to court, the question asked of the Privy Council was not whether Zaghlul should be freed, but whether there was a sufficiently important constitutional issue raised by his case to grant leave to appeal. In Upjohn’s view, there was a serious question about the nature of prerogative powers to be determined: as he saw it, the principles of English law had been introduced into Gibraltar through the various charters, so that it was too late for them to be revoked by a prerogative Order in Council in 1884. Against this, the Attorney General, Sir Douglas Hogg, argued that, as a conquered territory, the colony was ruled only by such laws as the crown chose to impose, and that the crown retained all of its legislative powers, having specifically reserved the power to alter any of the charters it had granted. In Hogg’s view, the rights of Englishmen did not migrate to colonies when they were conquered: Gibraltar had no habeas corpus in 1715, and it had never been introduced there by statute. No English statute had any force in Gibraltar save by virtue of the Order in Council of 1884, which reserved the power to change any law. Besides arguing these points of constitutional law, Hogg urged that he was ‘very anxious that your Lordships … should not give leave, for reasons that you appreciate having regard to what is going on in Egypt’: it was ‘a very very serious matter from the political standpoint’.Footnote ¹⁶¹ Given that the Colonial Office was at that moment planning Zaghlul’s release, the Attorney General’s comment was at best disingenuous.

During argument, the different members of the judicial committee inclined to different positions. The judge most inclined to think that there was an issue to be debated was Haldane. ‘I am sorry’, he interjected at one point, ‘but I do think a very considerable question arises whether the Prerogative of the Crown as regards places altogether outside these Islands without a Constitution can be exercised otherwise than in accordance with the law.’Footnote ¹⁶² Haldane not only considered that prerogative powers were bound by the common law, but also thought that the decision in ex parte Anderson had confirmed that the writ of habeas corpus ran throughout the empire, and that it could be removed only by an Act of the Imperial Parliament.Footnote ¹⁶³ By contrast, Lord Dunedin was sympathetic to Hogg’s argument that, just as the Imperial Parliament had taken away many rights by the Defence of the Realm Acts, so the crown could do the same thing by ordinance in a place where no constitution had been granted or legislature established.Footnote ¹⁶⁴ Although he had been the one judge who felt that there was a question to be discussed, it was Haldane who was delegated to hand down the decision of the court: that leave would not be granted. No reasons were given.Footnote ¹⁶⁵

During the discussions, Haldane had seemed to suggest a possible alternative route for Zaghlul to pursue: if the court in Gibraltar was unable to issue a writ of habeas corpus (because of the ordinance), then he could try to obtain one from the King’s Bench in London. However, it proved unnecessary to pursue the legal route much further, for, notwithstanding the Attorney General’s repeated comments in court about the political danger of even discussing whether Zaghlul might have a case, steps were being taken to release him. Continuing concerns about Zaghlul’s health had resulted in proposals that he be allowed to recuperate in Vichy, in France.Footnote ¹⁶⁶ A medical report on the day of the hearing stated that he should travel to a European watering place for the sake of his health, and Zaghlul petitioned the French government to be allowed to go there. Within two weeks of the judicial committee’s decision, Allenby had formed the view that he could be released, without giving any guarantees.Footnote ¹⁶⁷ On 4 April, Zaghlul left Gibraltar for Toulon. Rather than proceeding to Vichy, he remained at Marseilles, where he resumed his political activity. With the lifting of martial law in Egypt, Zaghlul was told in July that he could return; and he returned on 17 September, to a much smaller crowd and far less political excitement than had been the case on his return from Malta.

In Zaghlul’s case, the Privy Council had simply refused to consider whether a colonial Governor had the power to pass an ordinance to hold a detainee from another part of the empire. For most of the judges on the committee, no constitutional question was raised. Indeed, the Attorney General had regarded this as a matter of routine: ‘We are not doing anything new here’, he told the panel: ‘I have some 60 or 70 similar ordinances in Africa during the last 40 or 50 years, in which an Ordinance, very much the same as this Ordinance, has been passed and the validity of which has not been challenged.’Footnote ¹⁶⁸ The judicial committee accepted that the crown had full legislative power in colonies without assemblies, and that this power could be delegated to the Governor. This power could be called forth, shaped and defined by the king’s ministers in London, and used for the purposes of imperial rule. Within the courtroom, the judges were impressed with the notion that there was a political emergency which needed exceptional powers. Yet, at the very same time that its law officers were warning the court of the grave consequences of an adverse decision, a much more flexible political game was being played.

Zaghlul remained a highly important political figure after his return. His Wafd party scored a resounding victory in the January 1924 elections, which obliged the king to appoint Zaghlul Prime Minister. His continuing demands for further concessions from Britain – including his assertive claims to Sudan – led to further conflict with Allenby, leading to his resignation in November. The Wafd continued to dominate at the polls, however, and Zaghlul remained president of the assembly until his death in 1927.