PUBLIC RECORD OFFICE
Reference :--
PILLEC.O. 885
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH—NOT TO
15 PUBLIC RECORD OFFICE, LONDON
2
Commanding Officer in the interests of public safety. It would, we think, confuse and obscure the nature and functions of these Courts Martial if their proceedings were transmitted as proposed.
The records should, we think, be carefully preserved in South Africa, and not
brought here. The case is not one for revision.
2. We do not think that such record or revision would have any effect in law, and
it would not require an Act of Parliament.
3. The record or revision would not give any legal sanction to the proceedings; it could only operate as a safeguard against improper action under martial law, but on the whole we think it would do more harm than good. No Act of Parliament would be necessary.
4. Any Acts of Indemnity should be passed, if possible, by the Colonial
Parliaments.
5. Nothing further occurs to us to aid.
The Right Honourable Joseph Chamberlain, M.P.,
&c.,
&c.,
&c.
We have, &c.,
R. B. FINLAY, EDWARD CARSON.
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R
17385.
SIB,
No. 39.
(SOUTH AFRICA.)
No. 210,
LAW OFFICERS to COLONIAL OFFICE.
Royal Courts of Justice, 2nd June, 1900. WE were honoured with your commands signified in Mr. H. Bertram Cox's letter April 11, of the 28th ultimo stating that he was directed by you to transmit to us a despatch from 1900. the High Commissioner for South Africa enclosing a memorandum from Mr. Mackie Niven and Mr. Naph Cohen, in which they pointed out that the High Commissioner's notice of the 25th January which was issued on the advice of the Law Officers, and which was quoted by them, did not protect persons owing rents and other stipulated payments under private contracts to persons in the Transvaal or Orange Free State, which rents, &c., they might fail to pay; and they suggested the issue of a further Proclamation for the purpose of giving such protection.
1900.
That you, in reply to that despatch, stated-on the advice of the Law Officers To H. C., informally given-that you did not consider that any fresh Proclamation such as was May 18, suggested was necessary, but that it would be seen from the enclosed copy of a telegram from the High Commissioner of the 19th May that in consequence of representations from Telegram owners of options the periods of which had expired during the war, and of lessees, &c., who No. 311, had been unable to make payments, Sir A. Milner (who had not received your despatch) May 19. suggested the issue of a Proclamation providing for delay in the performance of such private contracts.
That Mr. Cox was also Klisbrinberg Estates Co., Oct. 27, 1899. Colonial Ofios reply, Oct. 31. Messrs. Phelps & Co., Jan. 31, 1900, Colonial Office reply, Feb. 7. Messrs. Phelps & Co., Feb. 7. Colonial Office reply, Feb. 21. Mesra Monro & Co., Feb. 21. Colonial Ofoe reply, March 10.
to enclose prints of the papers noted in the margin, being letters from various persons who had written to the Colonial Office raising questions of a similar kind to those dealt with in Messrs. Niven and Cohen's memorandum, together with copies of the replies returned thereto.
That Mr. Cox was to request us to take the our consideration and to report-
papers
into
1. Whether in our opinion all contracts entered into before the commencement of
the war between persons in Her Majesty's dominions and persons in the enemy States, or, if not all contracts, then what contracts or classes of con- tract were suspended during the existence of a state of war?
2. Whether any Proclamation should be issued to protect the rights of such persons,
or whether they should be left to establish any and, if so, what branches of these rights in the local courts after the restoration of ?
peace
3. What answer should be returned to Messrs. Henderson's letter of 23rd May 2 We have taken the papers into our consideration, and, in obedience to your commands, have the honour to
Report-
1. That in our opinion it may be stated, as a general rule, that all contracts exist- ing at the commencement of war between persons in Her Majesty's dominions and enemies in the enemies' States are, according to their nature, suspended, or extinguished by the breaking out of war.
Questions of very great difficulty may arise as to whether particular contracts are merely suspended as in a case of debt resulting from a contract otherwise executed or extinguished, on the ground that performance has been rendered illegal by the outbreak of war (see Esposito v. Bowden, 7 E. and B. 763). In our opinion no general rule can be safely laid down in advance beyond the principle indicated in the preceding sentence. 2. In our opinion no such Proclamation is expedient. So far as the parties may not be able to enforce their contracts in the local courts after the restoration
of peace. it may be necessary to legislate in the Orange River and Transvaal territories to prevent injustice from the fact that performance has been prevented by the war, but the terms of such legislation will require very
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