PUBLIC RECORD OFFICE
Reference :-
TTTTTC.O. 885-
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ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH—NOT TO
PUBLIC RECORD OFFICE, LONDON
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but not the second clause of the Act of 22 Geo. 3., he was to suggest that this apparent anomaly might be explained by supposing that the framers of the later Act construed the second clause of the Act of 22 Geo. 3. in its strict grammatical meaning, interpreting the words "such office" (section 2) to mean unreservedly all "offices" (section 1) to be "exercised in any Colony or plantation now or at any time hereafter" without resorting to the slight grammatical violence which would be necessary in order to restrict the operation of the second clause to offices granted by patent. In this (the strictly grammatical) construction of that clause it would require no extension in order to fulfil the full object which it was intended to serve (viz., the destruction of the practice of performing official duties in the Colonies by deputy), and it is submitted that this may be the reason why the framers of the Act 54 Geo. 3. omitted to extend its operation.
Sir Frederic Rogers was pleased to annex copies of the various Acts bearing upon this question.
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In obedience to your Grace's commands, we have taken these papers into our consideration, and have the honour to
Report
1. That we are of opinion that the Governor and Council cannot remove a clerk of the peace for absence or neglect of duty or other misbehaviour under the authority of the second clause of 22 Geo. 3. c. 75. We agree with the Attorney General of Jamaica in thinking that the offices to which the second and subsequent clauses of that statute relate are only "such " as were (before 54 Geo. 3. c. 61.) within the purview granted of the first clause, viz., offices in the gift of the Crown which only could be " or grantable by patent." If the second clause were understood to relate to offices of every kind, and in whatever patronage "to be exercised in any Colony or plantation, now or at any time hereafter," the same latitude of construction must necessarily be extended to the third clause, the effect of which would be to transfer to the Crown upon the first and every other vacancy in every such office the immediate right of appointment thereto, or, in other words, to make it impossible that there should be after 1782, in any British Colony or plantation, any office not in the direct gift of the Crown.
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2. It becomes, therefore, unnecessary to answer your Grace's second question, but we think it clear that in any case in which the power of amotion from office does rest with the Governor of Jamaica, under 22 Geo. 3. o. 75., the Governor must obtain the concurrence not of the Legislative but of the Privy Council of that island.
We have, &c.
For the Attorney General and myself,
(Signed) ROUNDELL PALMER.
His Grace the Duke of Newcastle, K.G.,
&c.
&c.
&c.
1557/1868.
No. 206.
(GIBRALTAR.)
QUEEN'S ADVOCATE to FOREIGN OFFICE.
$1
MY LORD,
August 24, 1863. I AM honoured with your Lordship's commands signified in Mr. Layard's letter of the 17th August instant, stating that with reference to the Report of my predecessor of the 2nd October 1861, respecting the case of the "Criticado," he was directed to transmit to me two Despatches and their enclosures from Her Majesty's Chargé d'Affaires at Madrid, reporting that the Superior Court at Seville has confirmed the decision of the Court at Cadiz as to the illegality of the capture of the " Criticado,' and stating that the ship and cargo have in consequence been restored to the owners. That I should perceive that the agent of these parties has now put in a claim for indem- nity for losses sustained by the detention of the vessel and her cargo for 23 months amounting to 397,832 reals vellon, or about 4,1521. 148. 84d., and that with reference to this claim Her Majesty's Chargé d'Affaires furnishes information on the points to which my predecessor referred as requiring explanation, and Mr. Layard was to re- quest that I would take these papers, together with the previous correspondence, into consideration, and furnish your Lordship with my opinion whether Her Majesty's Government would be justified in supporting the claim to indemnity now put forward by the owners of the "Criticado," and, if so, whether their account of damages can be adopted as the basis of any representations that I may advise Her Majesty's Government to make to that of Spain in the matter.
In obedience to your Lordships commands, I have taken this case into consideration, and have the honour to
Report
"
That it appears to me clear that the "Criticado intended to smuggle her cargo into Spain. The deliberate falsehood of the master as to the date of his sailing, the टै place where the vessel was taken when the easterly wind, which had been blowing for several days, subsequently would, if her destination really had been Bayonne, have brought her nearer to that port than Cadiz; the tobacco which she carried, and which it would seem could not have been legally imported into France, and which appears to have been directed to persons at Cadiz (see Senor Collante's letter, February 26, 1862), the inability of the master to read or write, the absence of charts and of requisite provisions for a voyage from Gibraltar to Bayonne, the report which has reached her captor, are all circumstances pointing to this conclusion.
The Spanish Courts, however, have decided that she was unlawfully seized, and, according to the more usual practice of courts, her acquittal would have been followed by the award of reasonable costs and demurrage damages, and I think that Her Majesty's representative at Madrid should be instructed to inquire from the proper authority why this consequence did not follow from the sentence, and if the answer should be that the Court had no power to decree costs and damages, then I think that he should state that Her Majesty's Government decline to accept this answer as satisfactory, though in the present case, for special reasons, they forbear to press for the indemnity, which it would be competent to them to demand, for I agree in opinion with my predecessor that (all the circumstances to which he refers con- sidered) it does not seem expedient that Her Majesty's Government should demand an indemnity in this case, since it appears morally certain that the vessel was not engaged in a lawful voyage. I ought, however, to add that I do not know what course Her Majesty's Government pursued in the cases of the "Ferry Boat" and the "Julian" to which the Report of my predecessor makes reference. If in these, or similar cases, Her Majesty's Government have thought it proper, notwithstanding the illegal destination of the vessel, to demand compensation on the sole ground of the unlawfulness of the seizure out of Spanish waters, though the vessel at the time of
0 16978.820. 25.-2/86.