PUBLIC RECORD OFFICE
Reference :-
C.O. 885
PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
General is a legal officer, and has no arbitrary power whatever over Portuguese or other
estates.
"That your Lordship is therefore at a loss to understand what has (in effect) occurred at Demerara to call forth such serious complaints on behalf of the Government of Portugal in this matter; and must therefore request more specific allegations and proofs in support of the serious charges thus made against the Administrator-General and the Governor respectively."
It will be desirable to transmit Count Lavradio's note to the Colony, for a full report by the Colonial Attorney-General on the matter in question, especially as to the circumstances which have given rise to this discussion, and as to the difference between the English and the Colonial procedure on the point in question; and as to the right of interference on the part of foreign consule being in any and what cases recognised or permitted by the Colonial courts in the absence of heirs or legal representatives.
Information should also be obtained from Portugal as to the proceedings taken by British Consuls there in similar cases.
I must observe (confidentially) that although it seems singular that this treaty-right should have (as it were) lain dormant for twenty-seven years, yet that the abstract question involved is not free from difficulty, and that it would be desirable if the matter could be settled, as far as regards the Colony, without further discussion.
The letter of the Treaty of 1842, Article 2, seems in favour of the claim of Portugal in this matter; but the right in question has not, so far as I am aware, been hitherto insisted on by Portugal either in England, British India, or the Colonies; at all events no general claim on the part of Portuguese Consuls under the treaty to represent all absent Portguese heirs, and to administer or take charge of the effects of all deceased Portuguese until the owner shall have made arrangements for obtaining possession has been as yet advanced by Portugal, nor could such a general claim be conceded as a matter of strict legal right consistently with English law and procedure. The system of an official administrator taking charge of the effects, in the absence of legal representa- tives, on their behalf and for their security and benefit, although unknown in England, is not peculiar to Demerara, it exists in full vigour in British India and, I believe, in New South Wales, and some other British Colonies.
"
In the case of Demerara, the point seems to have arisen accidentally, and the treaty- right in question has not, as far as I am aware, been formally claimed by Portugal in any other instance. The words of the treaty, and possibly the practice in Portugal, seem likely to create a legal difficulty, and the claim of Portugal may, if extended and pressed in all cases throughout the Queen's dominions, give rise to serious incon- venience. No case of bardship or inconvenience has hitherto arisen from the absence of any consular intervention, and the Governor suggests that the Portuguese in Demerara are not likely to gain any advantage by such intervention.
(as we should say) of the cases in If the Consul only wants (in effect) "a return which the Administrator-General has acted on behalf of Portuguese subjects, this may probably be supplied to him without serious difficulty, or if, as may possibly be the case (see the Consul's letter to the Governor of September 16, 1859) the Consul will be satisfied with an explanation that although the Colonial law and procedure does not admit of the information in question being supplied to him as a matter of course in all cases yet that every information which he may desire for any specific purpose will be given him, the case might perhaps be arranged on this footing, and Count Lavradio might be so informed and the discussion of the tresty-right might thus be avoided.
I may add (for the consideration of the Colonial Department) that the communica- by the Administrator-General to the Portuguese Consul of the names and description of the deceased, and some particulars of their effects for general publication in the Portuguese dominions, might possibly be found advantageous in its practical results, by aiding in the discovery of their absent legal representatives, and preventing personation, error, and fraud in the administration and distribution of their effects.
I have, &c. (Signed) J. D. HARDING.
The Right Hon. Lord John Russell.
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8578.
SIB,
No. 33.
(MALTA.)
FOREIGN OFFICE to COLONIAL OFFICE.
Foreign Office, August 31, 1860. WITH reference to your letter of the 21st ultimo, relative to the prohibition to export arms from Malta, I am directed by Lord John Russell to inform you that his Lordship caused that letter to be referred to the Law Officers of the Crown, and I am now to state to you, for the information of the Secretary of State for the Colonies, that appears that the Governor of Malta's prohibition of the exportation of arms from that Island was perfectly legal, and that it is competent to him to revoke or modify the prohibition, and to regulate the exportation at his discretion.
it
But Lord John Russell is of opinion that it is not desirable at present to revoke the prohibition.
Sir Frederic Rogers,
&c. &c.
&c.
0 16978----745. 25.-2/66.
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I am, &c.
(Signed) E. HAMMOND.