PUBLIC RECORD OFFICE
C.O.
Reference :-
885
10
PUBLIC RECORD OFFICE, LONDON ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
2nd. It appears, from the Ordinances passed by the Governor and Legislative Council of the Falkland Islands in 1857, that the whole of the provisions of the Merchant Shipping Act, "prescribing the punishment for any offence" by British seamen, are made applicable to seamen on board any foreign vessel charged with any such offences by the captain. Mr. Brooke was, therefore, bound to entertain and deal with the charge of desertion against the steward of the "Helen A. Miller," if properly brought before him and supported to the extent of a prima facie case at least by legal proof. Even then it would have been in the discretion of a magistrate whether he Bhould issue a summons or a warrant in the first instance. The first application was for a warrant, which was refused, a summons, however, being granted." In adopting this course, Mr. Brooke was, in our opinion, warranted by the discretion vested in him. But, besides that, it appears to be very doubtful whether the charge was made on behalf of Captain Sweeney, the commander of the "Helen A. Miller," and it was certainly not supported by any legal proof whatever. The only evidence then tendered, 88 we collect, was the endorsement of the fact on the ship's articles; but Article 4 of the Falkland Islands' Ordinances, making such endorsement evidence, applies only to cases in which, at the date of the complaint, the ship has already taken its departure from the port where the complaint is preferred, which, owing to the wreck, could not happen in the present instance. The "Nancy" also, which had been taken up to convey the American Commercial Agent and portions of the crew of the wrecked Vessel to Monte Video, had not as yet sailed from the Falkland Islands. It is said to have set sail the following day. The non-appearance of the steward at the return of the summons, and the inability of the officer entrusted with service of the summons to find him, might have justified Mr. Brooke in issuing his warrant to bring the steward before him to meet the charge of desertion: provided the Captain had appeared as the accuser, and had sworn to the steward's having deserted from the wrecked We collect, however, that no such vessel prior to final abandonment of the wreck. evidence was offered on that occasion, and, besides, the summons, on being examined by Mr. Brooke, was found to be at the instance, not of the Captain, but of the Governor of the Colony. Upon an accusation so preferred the penal provisions of the Merchant Shipping Act did not apply, and the magistrate was without any criminal jurisdiction. No second summons, at the instance of the Captain, appears to have been applied for; and taking all these circumstances into consideration, we are also of opinion that Mr. Brooke was justified in the course which he adopted in respect to the matter of the complaint against the steward for desertion. We would further observe that the Captain's protest is confined to the proceedings in the action for wages, and does not extend to the criminal proceedings or their event. Moreover, the object of these criminal proceedings was confessedly not imprisonment and forfeiture, to be visited on the steward, as under section 243 of the Merchant Shipping Act, but that he might be sent on board the "Nancy," as under the 247th section. But, if Mr. Brooke had convicted the steward of desertion, he could not thus have disposed of him, though he might have sentenced him to be imprisoned and to forfeit his effects and wages, &c. For the ship on board which, under the 247th section, the deserter may be sent instead of being imprisoned on shore, is the ship "in which he is engaged to serve," and the "purpose" for which he is to be so sent on board is "proceeding on the voyage," meaning the contract voyage. But "the ship" was lost and "the voyage" relinquished, rendering the section in question wholly inapplicable, and the real object of the criminal proceeding unattainable.
3rd. For the above reasons, we are of opinion that Captain Sweeney has no legal ground of complaint against Mr. Brooke or the Colonial authorities.
4th. Police magistrates in foreign dependencies of the Crown have no jurisdiction to entertain the criminal charge of desertion from a foreign ship, or to deal in any manner with foreign deserters as such, unless (as happened in this case) there are provisions existing in the local laws constituting such desertion an offence, or unless the Foreign Deserters Act (15 & 16 Vict. c. 26,) has been applied, by Order in Council, Where the local law makes such to the foreign power under whose flag the ship sails. desertion an offence, and is appealed to by the captain, the magistrate should proceed orderly, requiring legal evidence of the imputed crime, and issuing a summons or a warrant in the first instance according to circumstances; a summons where flight or The noting of desertion by evasion is not to be apprehended; otherwise a warrant.
the consular agent of the power to which the vessel belongs, is per se, and in the absence of express statutable provision, no proof whatever of the fact so noted. The Foreign Deserters Act (not as yet, we believe and have assumed, applied by any "arrangement" to the case of deserters from American ships) plainly points out the
3
measures to be adopted by police magistrates and others to aid in the restoration of foreign deserters to the ships from which they have deserted; and such restoration, and not any penal infliction, is the object of the statute. To its provisions all local authorities should strictly adhere. Information "on oath" and "due proof" are expressly required, and general rules of evidence should be acted on in determining whether desertion is, or is not, proved.
An abuse of the judicial office (exbibited in a partial leaning to Mr. Lane, and a feeling of hostility to the American Captain,) is suggested by the latter against Mr. Brooke; and if such alleged abuse were clearly established, then, as between the two Governments, a good case for compensation to Captain Sweeney, on the requisition of his own Government, might be established. If Captain Sweeney states the truth with reference to Mr. Lane's disappointment at not being able to make the purchases he desired, some colour may have been given for Captain Sweeney's suspicions, owing to that circumstance and the commercial position and general activity of Mr. Lane in the various matters of dispute that arose, and his assumed influence as a trained lawyer, with the bench. We do not discover in the materials before us any sufficient grounds for those suspicions, or for imputing misconduct to Mr. Brooke.
We have, &c. (Signed)
His Grace the Duke of Newcastle,
&c
&c.
&c.
J. D. HARDING. RICHARD BETHELL. WM. ATHERTON.