CO885-(13-15) — Page 50

In compliance with the request contained in Mr. Bramston's letter, we have the

honour to

25828.

Report

That we have most carefully considered the question now submitted to us, and concur entirely in the views expressed by Lord Cairns and Lord Selborne in the Memoranda of 1879 and 1880 respectively.

It is, in our opinion, very undesirable to interfere with legislation proposed by a Colony such as New South Wales, upon a matter which is undoubtedly within the competence of the Colonial Legislature, but it must be remembered that the questions of marriage and divorce are of great moment, and may affect the status of children and the devolution of property in other countries.

It is, in our opinion, of the highest importance that there should be no doubt as to the universal recognition of the validity of a decree of dissolution when pronounced.

We may

further point out that this matter was carefully considered in the years 1878- 1880, and the New South Wales Act of 1881 was modified in consequence of the opinions then expressed.

Without again discussing the question whether domicil is requisite in order to render a decree of divorce effective in other countries, two years' residence without any further safeguard or provision does not, in our judgment, afford sufficient security in this respect.

We think the attention of the Colonial Authorities should be called to the fact that cases might occur in which the husband had never lost his domicil in another country, and his residence, though for two years, had only been temporary and with the inten- tion of leaving the Colony immediately, in which case other countries might decline to recognise the validity of the decree.

For the reasons above stated, we are of opinion that it would be desirable to point out to the Colonial Government the danger to which divorced persons would be exposed if clause 1 of the Bill were allowed to pass in its present form, and that they might reasonably be invited to insert a provision regarding domicil similar in purport to that which has already been enacted by section 2 of their own Matrimonial Causes Amendment Act of 1881.

Until these suggestions have been considered by the Colony, we think that Her Majesty's assent to the Bill should be reserved.

We have, &c.,

(Signed)

The Right Hon. Sir Henry Holland, Bt., M.P.,

&c.

&c.

&c.

RICHARD E. WEBSTER. EDWARD CLARKE.

SIR,

No. 109.

(CANADA.)

HOME OFFICE to COLONIAL OFFICE.

Home Office, December 22, 1887. WITH reference to your letter of the 5th October, as to the question of the validity of a Canadian Extradition warrant outside the boundaries of the Dominion of Canada, I am directed by Mr. Secretary Matthews to transmit herewith, for the inform- ation of Sir Henry Holland, copy of the opinion of the Law Officers of the Crown_to- whom a case was submitted.

I am to add that Mr. Matthews is in communication with the Chief Magistrate as to the course to be adopted on any future occasion when this question may recur.

I am, &c., (Signed) E. LEIGH PEMBERTON.

The Under Secretary of State, Colonial Office.

Enclosure.

LAW OFFICERS to HOME OFFICE.

OPINION as to the VALIDITY of a CANADIAN EXTRADITION WARRANT outside the DOMINION.

Royal Courts of Justice, December 12, 1887.

We are of opinion that the Canadian Warrant has no force or effect outside Canadian territory. Circumstances appear to have prevented a full discussion of the terms of the Canadian Act at the time of its passing, and it is probably owing to that that some difficulty will be found in reconciling the form of the Warrant given in the Third Schedule with the terms of Section 18 sub-section 2.

who

may,

Section 18 authorises the Minister of Justice to order surrender to a person. in his opinion, be duly authorised to receive the prisoner on behalf of the Foreign State.

Sub-section 2 of Section 18 differs in its wording from the Imperial Act, and provides that the Canadian official may be authorised to deliver the fugitive (i.c. in Canada), but it is for the person authorised to receive him on behalf of the Foreign State to hold him in custody and convey him within the jurisdiction of that State.

In our opinion the Canadian Government has no power to authorise a Canadian official to convey a prisoner across the seas, or through the territory of Great Britain or any other country. There is no doubt some, though perhaps not very serious, inconvenience, and we think the better course will be that the matter should be dealt with by such legislation as was suggested in the Report of the Royal Commissioners of 1878.

(Signed) RICHARD E. WEBSTER.

EDWARD CLARKE.

"2

Addendum by the Attorney General.

I desire to add that in my opinion the matter might also be dealt with by revoking the Order in Council of 1882 and making a fresh Order under Section 18 of the Act of 1870, directing that the provisions of the Canadian Acts of 1877 and 1882 shall, for the purposes of the Extradition Acts, have effect as though they were part of the Act, but agree that the better course is to adopt the suggestion contained in the Report of the Royal Commissioners.

(Signed) RICHARD E. WEBSTER.

• 11.0. Canada, 18,475/87.

A 329.30.-). 25.-1/88.

PUBLIC RECORD OFFICE

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C.O.885

Reference :-

13 PUBLIC RECORD OFFICE, LONDON

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