CO885-(15-16) — Page 311

R

10364

PUBLIC RECORD OFFICE

19

Reference :-

TTTTT C.O. 885

miniminim

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

15 PUBLIC RECORD OFFICE, LONDON

No. 217.

(TRANSVAAL; ORANGE RIVER COLONY; GENERAL.) LAW OFFICERS to COLONIAL OFFICE.

[Legalization or Authentication in the United Kingdom of Documents intended for use in the Transvaal or Orange River Colony.]

SIR,

Royal Courts of Justice,

March 21, 1904.

We were honoured with your commands signified in Sir M. F. Ommanney's letter of the 22nd ultimo, stating that he was directed by you to ask us to report upon certain questions which had arisen in connection with the legalization or authen- tication in the United Kingdom of documents intended for use in the Transvaal or Orange River Colony.

That in the month of February, 1903, the Society of Public Notaries of London took exception to the Regulations contained in the Transvaal Government Notice, No. 465, of 1902, with regard to the authentication of documents.

That, after some preliminary correspondence the Society, on the 26th February, forwarded a "Statement of Case" on the subject by the Chairman of the Society, and that Sir M. F. Ommanney was to transmit, for our consideration, a copy of that statement together with copies of the Transvaal Government Notices No. 465, of 1902, and No. 526, of 1903, and of the other documents and correspondence noted in the margin.

That it would be observed that the Society of Provincial Notaries and, subse- quently, the Notaries of Ireland associated themselves with the protests of the London Society against the Transvaal Government Notice No. 465, of 1902, and the later Notice, No. 526, of 1903, which was substituted for it by the Transvaal Govern- ment after considering the original case submitted by the London Society and Mr. Chamberlain's despatch of the 12th March, 1903.

That it would appear that the contention of the Notaries, stated shortly, was that the Notice issued by the Transvaal Government expressly invited persons in the United Kingdom to do notarial acts for doing which they would incur a penalty of fifty pounds under 6 and 7 Vict. C. 90, Section 10.

That the penalty under the last-mentioned section attached to the doing-by unauthorised persons of notarial acts "for or in expectation of any gain, fee or reward," and that the doing of notarial acts by such persons without any fee or reward would appear merely to fall within the general prohibition contained in Section 1 of 41 Geo. III., C. 79, the penalty for a breach of which appeared to be uncertain.

That your general views on this subject were stated in the letter of 7th Decem- ber, 1903, addressed by your Department to the Home Office, from which it would be clear that you desired, if possible, to enable persons in this country to authenti- cate documents for use in the Transvaal, where property of small amount was con- cerned, without the delay and expense necessitated by the intervention of a Notary public. That Sir M. Ommanney was to add that in your opinion it seemed expedi- ent that a document intended for use in a Colony should be capable of legalization in the United Kingdom with greater facility and less expense than obtained in the case of a document for use in a foreign country.

That in the case of documents involving an oath, it was difficult to meet the contention of the Society that, in view of Section 1 (2) of the Commissioners for Oaths Act, 1889, legalization by a Notary public in this country could not be dis- pensed with. But that in the case of documents not involving an oath, e.g., powers of attorney, Sir M. Ommanney was to suggest, for our consideration, that it might be argued that there was a distinction between the authentication or legalization of documents (which was a notarial act, and a matter provided for by statute), and the mere authentication of signature (which, it was submitted, was not a notarial act, but a matter of routine and convenience); and that the Law of England did not make legalization by a Notary public compulsory in the case of all documents - intended for use out of the United Kingdom, in other words, that it only provided that if a document had to be legalized it must be legalized by a Notary public; and

25 Wt 664 101 D&S

K 17750