CO885-(11-13) — Page 314

with our opinion whether, under the circumstances above stated, the authorities of the Orange Free State were contravening any principle of international law in issuing the writs against Mr. Craven, assuming the fact on the one hand that he had, according to the law of the Orange Free State, made himself liable to arrest upon civil process, and on the other hand, that the acts which had made him so liable had been done in the Colony of Griqualand West and in the capacity of trustee of an insolvent estate.

In obedience to your Lordship's commands we have the honour to

Report

That upon the facts stated we do not think your Lordship would be justified in directing Sir H. Barkly to support, in his character of representative of Her Majesty, any formal claim for damages which Mr. Craven may prefer against the Orange Free State.

The suit is a suit for damages against a private person (an assignee in bankruptcy is no more), and that person was regularly arrested at the suit of a plaintiff in the country in which he then was.

The fact that the cause of action arose out of the jurisdiction of that country is immaterial. It would be so in our own Courts and certainly affords no ground for diplomatic intervention.

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

We have, &c.,

(Signed)

JOHN HOLKER. HARDINGE S. GIFFARD.

4336.

No. 90.

(GIBRALTAR.)

LAW OFFICERS to COLONIAL OFFICE.

MY LORD,

We were honoured with your Lordship's commands, signified in Mr. Herbert's

Temple, 12th April 1876. letter of the 31st March ultimo, stating that he was directed by your Lordship to transmit to us the enclosed draft of an agreement proposed to be entered into between Malta and Gibraltar, under the Colonial Prisoners' Removal Act, 32 Vict. c. 10.

2. That these articles were to embody the terms of an arrangement contemplated between the two possessions, under which Malta was to receive not more than six Gibraltar prisoners of Spanish origin or natives of the Mediterranean. definition of nationality being necessarily vague, we would observe that in the That this operative part of the agreement the power of removal is subject only to one condition, namely, the assent of the Governor of Malta. That this course was adopted in order to avoid the risk of the legality of a prisoner's removal being affected by any departure from the terms on which it was intended to carry out the arrangement, and which have therefore been merely recited in the preamble instead of being embodied in the agreement, and a clause had been inserted providing for the adjustment by the Secretary of State of any differences which might arise on the subject between the two Colonial Governments.

3. Mr. Herbert was pleased to request that we would take this draft agreement into our consideration, and advise your Lordship whether, in our opinion, it is sufficient for the purpose in view, or, if not, what amendments it required.

4. That when the draft was settled, it would be communicated to the Governors of Malta and Gibraltar, with instructions to take the necessary further steps under the 4th section of the Act for bringing it into operation.

In obedience to your Lordship's commands we have the honour to

Report

That what the covering letter is called preamble is nevertheless so far part of the agreement that the subsequent part, which is described as the operative part, must be read as controlled by, and must be construed with, the so-called preamble; that it therefore results that the agreement would be only applicable to prisoners being of Spanish origin or natives of the Mediterranean," and unless it is intended so to confine the operations of the agreement we recommend the omission of those words. In other respects we approve of the agreement.

C4

(Signed)

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

We have, &c.,

JOHN HOLKER. HARDINGE S. GIFFARD.

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▲ 18916.-90. 25.—12;84.

PUBLIC RECORD OFFICE

co.

Reference :-

885

12 PUBLIC RECORD OFFICE, LONDON

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