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possible," and it is to be the decision to which the court has come with respect to cancelling or suspending. Such decision having been given in open court the court is then to send a full report upon the case to the Board of Trade, and there are no words in this subsection which require its previous confirmation by the Governor, or even any notification to the Governor at all.
If then the report is necessarily subsequent to the decision it is a report that the cancelling or suspending has taken place already; the power has been exercised by the court and there is nothing left for the Governor to confirm.
It may be said that the words "as soon afterwards as possible" afford an oppor- tunity for resorting to the Governor before the decision is given in open court, but even then the confirmation could not be obtained, for it is the confirmation of the report and not of the decision which was formerly required under the Act of 1854.
If the subsections in both Acts are to be observed, the court must first state their decision in open court, then send their report to the Governor (although it is to the Board of Trade the statute requires it to be sent), and then give effect to their decision if confirmed by him. If not confirmed, the decision already proclaimed in open court would es hypothesi be invalid. This could hardly have been the intention of the Legislature, which has in the following subsection (4) of the Act of 1862 provided for a review and reversal of the decision by the Board of Trade.
The question is, therefore, whether that part of the Act of 1854 which requires a confirmation of the Report by the Governor has not practically been repealed by the . Act of 1862.
Counsel are requested to advise :--
1. Whether the requirement in subsection 5, section 242, Merchant Shipping Act, 1854, as to confirmation by the Governor of a British possession has now any and what legal effect.
Opinion.
We are of opinion that the requirement in subsection (5) of section 242 of the Merchant Shipping Act, 1854, with respect to confirmation of a report by the Governor of a British possession has not now any legal effect.
It appears to be implied by the language of the Act of 1862, s. 23, subs. 1, 3, and 4, that the cancelling or suspension of a certificate is to be the act of the court itself, subject only to the power of the Board of Trade to review the decision of the court under section 23 of the Act of 1862, or to direct a rehearing under section 2, sub- section 1 of the Shipping Casualties Act, 1879.
(Signed)
HENRY JAMES. FARRER HERSCHELL.
2327.
No. 272.
(SIERRA LEONE.)
LAW OFFICERS to TREASURY.
We have some difficulty in determining what are the points intended to be submitted
Temple, 28th January 1882. to us for consideration.
Mr. A. L. Smith in his notes has pointed out the proceedings that must be taken in order to cause persons who appear to have committed a murder to be duly punished. We do not understand that those proceedings present any grave difficulty in the way of arriving at the desired result. It may be that Lord Kimberley is in possession of knowledge that may cause him to think that a grand jury cannot be summoned in Sierra Leone, or will not find a true bill, but we are not put in possession of any facts which cause us to think it impossible, or even difficult, to bring the accused persons to justice. We venture to suggest that it will be a cause for much regret if, by the discontinuance of the proposed proceedings, it should be admitted that the laws of this country provide no means for punishing such criminals as those whose case is now under consideration.
The Secretary to the Treasury.
(Signed)
HENRY JAMES. FARRER HERSCHELL. A. L. SMITH.
I regret that I am unable to concur in the above opinion of the Attorney and Solicitor General, though I come to the conclusion below with very great diffidence in view of their opinion above.
I am of opinion that the court or tribunal under 25 & 26 Viet. c. 63. s. 23, had transferred to it the same power only which the Board of Trade had under 17 & 18 Vict. c. 104. s. 242 (5), and no greater, that is to say, a power to suspend the certificate if the report by the court or tribunal to the Governor or person administer- ing the government of the possession is confirmed by him, and no power if not confirmed by him.
I am, however, of opinion that the court or tribunal may and should declare its decision with reference to the certificate at the conclusion of the case, or as soon afterwards as possible, but that such decision will be subject to confirmation as above mentioned, and the cancellation or suspension (as the case may be) will take effect from the date of confirmation.
(Signed) A. L. SMITH.
Temple, January 23rd, 1882.
▲ 12916.—252. 25.--19/64.
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