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36638.

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PUBLIC RECORD OFFICE

C.O.

Reference :-

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

885

-15 PUBLIC RECORD OFFICE, LONDON

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Report-

In our opinion no distinction should be drawn between the case of a natural-born and that of a naturalized citizen. The third paragraph of our Report of the 17th May, 1900, does not refer to the case of a naturalized citizen of the late Republics voluntarily claiming the status of a British subject in a British possession by reason of the annevation.

2. Her Majesty's Diplomatic and Consular Representatives abroad should be informed that naturalized citizens of the late Republics voluntarily claiming the status of British subjects in the late Republics are entitled to be treated as such.

Royal Courts of Justice,

October 31, 1900%

R. B. FINLAY. EDWARD CARSON.

SIR,

No. 58.

(SOUTH AFRICA Transvaal.}

LAW OFFICERS to COLONIAL OFFICE.

Royal Courts of Justice, November 9, 1900. We were honoured with your commands, signed in Mr. Bertram Cox's letter

of the 30th ultimo, stating that he was wrected by you to transmit, for our considera- tion, the following papers having relation to certain marriages celebrated in the Transvaal during the present war:-

(1.) A despatch from the High Commissioner, South Africa, No. 480, dated 4th July, 1900, together with enclosures Nos. 1 and 2.

1900.

(ii) Copy of letter from the Colonial Office to the Foreign Office of 14th August,

(iii) The reply of the Foreign Office, dated the 23rd of August, 1900.

(iv.) Copy of Secretary of State's despatch to High Commissioner, South Africa, dated 30th August, 1900.

(v.) A despatch from the High Commissioner, South Africa, No. 735, dated 3rd October, 1900, together with original enclosures Nos. 1, 2, 3, and 4.

(vi.) Copy of the Foreign Marriage Act, 1802 (55 and 56 Vic. c. 23).

That Mr. Bertram Cox was to ask us to be good enough to take these matters into our consideration and to advise you:—

1. Whether a Military Governor in the Transvaal had power to appoint Marriage Officers to celebrate marriages.

2. Whether the "Marriage Commissioners" appointed by notice in the "Govern- ment Gazettes" at Pretoria and Johannesburg respectively, "for the purpose of carry- ing out the provisions of the Marriage Ordinance of the South African Republic (No. 3 of 1871)," were, under the circumstances appearing in these papers, competent to (A)° celebrate marriages under that Ordinance without any religious ceremony, as if they were" Landdrosts"; (B) to make the preliminary enquiries imposed by that Ordinance on the Commissioners (Huwelyke Commissaris) with the view of a subsequent cele- bration by a minister (leeraar) appointed by the Government of the South African Republic.

3. Whether marriages which might have been celebrated by such "Marriage Commissioners" might, if not otherwise valid, be covered by the provisions of Section 22 of the Foreign Marriage Act, 1892.

4. Whether it was desirable to validate (A) by Order in Council, or (B) by legis- lative enactment in the Transvaal, all marriages celebrated by "Marriage Commis- sioners" during the military occupation in South Africa.

In obedience to your commands, we have taken the matter into our consideration, and have the honour to

Report-

1 and 2. That we have not before us any information as to the special powers (if any) contained in the Orders appointing Military Governors in Pretoria and Johan- nesburg. We assume, however, that the Military Governors would have power either in express terms or virtute officii to make all such appointments as were neces- sary for effectively carrying on the functions of Government during the period of the military occupation.

We think, therefore, that the Military Governors had power to appoint the Marriage Commissioners to carry out the duties imposed on the Landdrosts, under the Marriage Ordinance of the South African Republic, and that marriages solemnized or licensed, as the case may be, by them in conformity with the Marriage Ordinance are valid.

We do not feel able to agree with the view of Mr. Wessels that the appointment of the Marriage Commissioner did not carry with it the right to celebrate marriages as the Landdrost might have done. We think it devolved upon him all the duties

of the Landdrost under the Marriage Ordinance of the South African Republic.

3. We think that Section 22 of the Foreign Marriage Act, 1892, might be relied on in support of the marriages referred to, but this might involve troublesome questions

of fact.

7160—52—11:1900 Wt 324 D&S 5

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4. It is most important that all marriages celebrated by the "Marriage Com- missioners" during the military occupation should be declared valid by legislative enactment in the Transvaal to prevent any possibility of questions being raised; the points raised are certainly very arguable.

The Right Honourable Joseph Chamberlain, M.P.,

&c., &c.,

&c.

We have, &c.,

R. B. FINLAY. EDWARD CARSON.