CO885-(15-16) — Page 579

PUBLIC RECORD OFFICE

C.O.885

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on domicile. The English Courts have jurisdiction to decree the nullity of any marriage celebrated in England, and there is some authority for saying that the Courts have such jurisdiction where the respondent is resident in England, not on a visit as a traveller and not having taken up that residence for the purpose of the suit.

That statement of the law cannot in our opinion be considered as of undoubted authority, and, in our opinion, it would be advisable that the jurisdiction in the Colony to decree nullity should be limited to cases of marriage celebrated within the Colony.

The jurisdiction to grant decrees of judicial separation and restitution of conjugal rights should, in our opinion, he made to depend on the residence of both parties in the Colony at the time of the commencement of proceedings. This is in accord with the analogy of the jurisdiction of the English Courts in such cases.

In our opinion, having regard to the provisions of Clause 7 (1), Married Women's Property Ordinance, which are applicable irrespective of the date of the marriage (differing in this respect from English law) there appears to be no necessity for the insertion of any provisions as to the making of protection orders.

If the alterations above suggested are adopted, some consequential modifications will be required in some of the forms in the Draft Ordinance.

We may add that the law as laid down in Clause 16 differs from English law, and may give rise to some conflict in matters of succession, but we do not suggest any alteration in the draft on this point, as it is perhaps advisable to assimilate the law of the Colony to that of India, which Clause 16 appears to follow.

Subject to the foregoing observations we approve the Ordinance as drafted.

We have, &c.,

The Right Honourable

The Earl of Crewe, K.G.,

&c.. &c.

. &c.,

W. S. ROBSON. S. T. EVANS.

6497

No. 128.

TRANSVAAL; ORANGE RIVER COLONY.

FOREIGN OFFICE to LAW OFFICERS.

[German claims arising out of war in South Africa.]

Foreign Office, September 15, 1909. I HAVE the honour, by direction of Secretary Sir E. Grey, to transmit to you the accompanying papers relating to three claims advanced by the German Govern- ment on behalf of certain of their subjects.

GENTLEMEN,

2. At intervals since the close of the South African war the German Government have been pressing upon His Majesty's Government a large number of claims arising out of that war, and have intimated that, if His Majesty's Government are unwilling to recognize their validity, they consider that they ought to be submitted to

arbitration.

3. The total number of these claims is about sixty-nine; in the great majority of cases Sir E. Grey is of opinion that sufficient reasons exist to justify him in declining altogether either to entertain the claims or to consent to their submission to arbitration.

4. With respect to the remaining claims, however, more difficult questions arise, and, as at present advised, Sir E. Grey feels that if he declines to submit the claims to arbitration he may be somewhat embarrassed to find adequate reasons for his refusal.

5. Before passing to the details of the claims it may be well to remind you that in the year 1904 an Arbitration Agreement was concluded with Germany (Paper (A)) modelled, like many similar agreements concluded about the same time, on that made with France in 1903. Article 1 of this Agreement provided for the reference to arbitration of differences of å legal nature, or relating to the interpretation of Treaties between the two Contracting Parties which it may not have been possible to settle by diplomacy, with the usual proviso excluding from the scope of the Agree- ment differences which affect the vital interests, the independence, or the honour of the parties, or which concern the interests of third parties. It is under the pro- visions of this Agreement that Germany maintains that these claims should be referred to arbitration.

6. Another consideration which Sir E. Grey thinks it desirable should be borne in mind is the attitude this country adopted in connection with obligatory arbitration Great Britain played a at the Second Peace Conference at the Hague in 1907.

prominent part at that Conference in supporting the various schemes and pro- positions that were put forward for extending the scope of obligatory arbitration. On the other hand, Germany took the foremost part in opposing them, and you will therefore readily understand that Sir E. Grey is reluctant to place His Majesty's Government in a position which would have the appearance of being_inconsistent with the attitude they instructed the British Delegates to adopt at the Hague. For this reason he would prefer not to decline to submit these claims to arbitration unless it is quite clear that there are sufficient reasons for so doing.

7. The particular claims as to which Sir E. Grey desires your advice are three in number that of Messrs. Plettner Brothers, that of Kraeber, and that of the The facts with reference to each of these claims are set Hamburg underwriters.

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out in separate Memoranda (Papers (B), (C), (D)), because as to the facts there is practically no dispute. It will be seen that each claim raises a clear legal issue, viz., whether, when Great Britain annexed the territories of the South African Republic and the Orange Free State, so that those two States ceased to exist as States, she inherited the liability of those States in respect of claims against them by individual foreigners for breach of contract or for torts committed by the officials of those Governments; and it is this question which Germany claims to refer to arbitration under the 1904 Agreement.

8. Up till now the only argument which has been used by Sir E. Grey in his correspondence with the German Government against the submission of the claims to arbitration under the 1904 Agreement is that that Agreement is not retrospective, and that therefore these claims are not within its scope. These claims must have

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