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Te Ti
PUBLIC RECORD OFFICE
Reference :-
CO.
885
3. Did the master of that steamer, by calling for coal at a port within Her Majesty's dominions, commit an offence against the Act, and especially against the pro- visions of section 8 (3) (4) of the Act, as equipping or despatching his ship.
4. Would he, by calling at a port within Her Majesty's dominions, without coaling or otherwise equipping his ship, have committed an offence against the Act, and especially against section 8 (4) as despatching his ship.
6. That your Lordship apprehended that the first case supposed by the Crown Advocate of a merchant in Her Majesty's dominions knowingly dealing with a con- tractor for a belligerent Government would be, in fact, an equipment of the vessel within the terms of the Act, and that Mr. Herbert was to ask whether it were so.
7. That Mr. Herbert was also to request that we would favour your Lordship with any observations upon the case generally which we might think it desirable to furnish.
In obedience to your Lordship's commands we have the honour to
That
Report
1. If the "Sandringham" was chartered to the Turkish Government, and was fitted and employed by them for the purpose of transporting horses from Tunis to the seat of war, we think she was "employed in the naval service" of that Government, as defined in the Foreign Enlistment Act, 1870, section 30.
We think, however, that neither the mere fittings of the ship, or presence of a Turkish officer with despatches on board her, would necessarily be decisive of the question of her employment.
2. If the steamer was in the employment of the Ottoman Government, still her mere employment without Her Majesty's dominions was not, independently of the question arising from her touching at Malta, an infringement of the Proclamation or of the Foreign Enlistment Act.
3. Assuming that the steamer was in the "naval service
or about to be " employed
in the naval service" of the Ottoman Government, the master did, by calling for coal and receiving it, commit an offence against the provisions of section 8, sub-section 3, of the Act, ie., the offence of equipping, &o.
4. Even under the assumptions made in answer to question 3, the master could not by merely calling at a port within Her Majesty's dominions without coaling, or other- wise equipping his ship, have committed an offence against the Act. The word
despatch" in section 8, clause 4, means, we think, the commencing a voyage.
5. With regard to the question contained in paragraph 6 of Mr. Herbert's letter, wo beg to remark that if the Crown Advocate has in view the case of a ship supplied in effect to the Ottoman Government through a contractor, we should concur with your Lordship in holding that the equipment, if it takes place in Her Majesty's dominions, is an equipment of the vessel within the terms of the Act. If, however, the Crown Advocate has in view the quite different case of a vessel supplied, e.g., in Great Britain to a contractor who has undertaken to supply the Ottoman Porte with goods, con- traband of war, we are unable to concur with your Lordship's opinion, since there is nothing in the provisions of the Foreign Enlistment Act, 1870, which makes the trade in contraband of war generally, either on the part of British subjects or others, illegal.
It does not occur to us that there are any general observations upon this case which we can usefully make to your Lordship.
The Right Hon. the Earl of Carnarvon,
&c.
&c.
&c.
We have, &c., (Signed) JOHN HOLKER.
HARDINGE S. GIFFARD.
9931.
MY LORD,
No. 147.
(NEW SOUTH WALES.)
THE ATTORNEY-GENERAL to COLONIAL OFFICE.
Temple, 14th August 1877.
Act.
I AM honoured with your Lordship's commands, signified in Mr. Bramston's letter of the 11th July ultimo, stating that he was directed by your Lordship to transmit to me a copy of a despatch from the Governor of New South Wales, enclosing No. 57, the transcript of a Bill passed by the Legislative Council and Assembly of that Colony, 30th April and reserved by the Governor for the signification of Her Majesty's pleasure thereupon, 1877. entitled "An Act to amend the law relating to Divorce and Matrimonial causes."
That the Governor also enclosed a report upon the Bill by the Attorney-General, and a protest against its provisions by certain members of the Legislative Council.
That your Lordship desired Mr. Bramston to request that jointly with the Solicitor- General and Dr. Deane I would take those papers into consideration, and favour your Lordship with my opinion-
(1.) As to the effect which a decree pronounced under that Act would have upon a
marriage contracted in England.
(2.) As to the rights of children by a second marriage of either of the divorced persons, contracted in the lifetime of the other, to succeed to property out of New South Wales, and
(3.) generally as to whether the Act might properly be submitted for Her Majesty's
sanction.
In obedience to your Lordship's commands I have the honour to
That-
Report
1. I am unable to concur in the views entertained by either the Solicitor-General or Dr. Deane with reference to the questions submitted to us.
In my opinion if a decree for a divorce were pronounced under the Act referred to, and the parties to the suit for such divorce, were domiciled in New South Wales, such decree would dissolve the marriage both in New South Wales and in England, even though such marriage was contracted in England or elsewhere out of the Colony. If, however, the decree were pronounced in a suit instituted between persons not domiciled in the Colony, the effect of such a decree would be that the marriage would be dissolved in the Colony, but not in England if the marriage was one contracted outside the Colony.
2. The result, as to the children of the divorced persons, if either of them married again and had children, would be that in the case supposed of a divorce between parties not domiciled in the Colony, such children in the Colony would be legitimate, but illegitimate out of it, or at all events in England. If, however, the divorced persons were domiciled in New South Wales, the children by the second marriage would be legitimate both in New South Wales and England.
3. I do not see any valid reason why Her Majesty's sanction should not be given to the Act. The Act, if sanctioned, would only place the law of New South Wales, with reference to the law of England, upon the same footing as the law of Scotland is at present.
The Right Hon. the Earl of Carnarvon,
&c.
&c.
&c.
(Signed)
I have, &c.,
JOHN HOLKER.
י
(12916. 143. 25.—19'84.
12 PUBLIC RECORD OFFICE, LONDON
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