CO885-(10-11) — Page 76

2682.

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PUBLIC RECORD OFFICE

Reference :-

C.O. 885

10 PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO

MY LORD,

No. 54.

(BRITISH GULANA.)

LAW OFFICERS to FOREIGN OFFICE.

Doctors' Commons, February 11, 1861. We are honoured with your Lordship's commands, signified in Lord Wodehouse's letter of the 20th November last, stating that with reference to the Queen's Advocate's Reports of the 18th September and 15th October last* on the subject of the claim made by the Portuguese Consul in British Guiana to take charge of the effects of Portuguese subjects dying intestate without heirs on the spot, he was directed to transmit to us a letter from the Colonial Office in which the Secretary of State for the Colonies requests your Lordship's opinion whether, according to the 2nd Article of the Treaty between this country and Portugal of July 3rd 1842, property belonging to Portuguese subjects dying intestate in British Guiana without heirs, can be claimed by the Crown of Portugal or whether it remains with the Crown of England; and to request that we would report to your Lordship our opinion as to the answer which should be returned upon this point to the Colonial Office.

The former papers were enclosed for convenience of reference.

In compliance with your Lordship's instructions, we have taken this subject into consideration, and have the honour to

Report

That the right of the Crown of England or of the Crown of Portugal to the personal property of Portuguese subjects dying intestate in British Guiana, and without heirs continues to depend (according to the general rule) on the place of the intestate's legal domicile at the time of his death. Thus, if a Portuguese subject dies intestate and without heirs domiciled in the British dominions, the Queen will be entitled to his personal property, but if although dying in the British dominions he were legally domiciled in Portugal at the time of his death the King of Portugal would be entitled thereto if so entitled by the law of Portugal. The terms of the 2nd article of the Treaty of July 1842 do not appear to us directly to affect this particular question.

Having thus answered the particular question on which the Secretary of State for the Colonies requests your Lordship's opinion, we must observe that the words of the treaty are in favour of the claims put forward on behalf of the Portuguese Consul, The inconvenience, however, of carrying out the letter of the treaty would be extreme, as the Queen's Advocate has already pointed out. The treaty applies in its full scope to every part of the British dominions; it may be expected that if the treaty be allowed its full scope in favour of Portugal other nations, especially those having what is known as "most favoured nation clauses" in their treaties with this country, will demand to be placed in this respect on the same footing, and these various requirements could not be yielded to without very extensive alterations in the law and administration of intestacy, not only in England, but throughout the Queen's dominions the practical operation and result of which will, in our opinion, give rise to very serious difficulties. Under these circumstances it is most desirable that, if possible, the question which has been now first raised by Portugal (after a tacit acquiescence or silence of nearly 20 years) should be restricted to British Guiana.

With the view of effecting this object we would recommend an offer being made to alter the local Ordinance by rendering it incumbent on the Administrator General without delay, and from time to time, to make returns to the Portuguese Consul of the names, residences, and designations of all Portuguese subjects dying intestate in the Colony, and of all such other material particulars, as to their effects and their known or supposed heirs as it may be in his power to do; and also by directing the proper Colonial court, on application of the Portuguese Consul, to authorise him to take charge of the effects of deceased Portuguese in the particular cases provided for by the terms of the 2nd article of the treaty in question.

Lord J. Russell.

&c. &c. &c.

We have, &c. (Signed)

J. D. HARDING."

R. BETHELL.

WM. ATHERTON.

o 16370-344. 25.-9/86.

· Hagatn

• Nos. 34 and 36.